Prose, Pictures, and the Power of Storytelling in Brumfield v. Cain

Perhaps no issue stirs more passion in Americans than the death penalty. Death penalty cases strike the heart of our most fundamental values—the very essence of who we are as humans.

Even the justices of the Supreme Court aren’t immune to this passion, and that fact is evident in their death penalty opinions. I’ve talked before about the striking contrast between the storytelling in the majority and dissenting opinions in Atkins v. Virginia.    

Last week the Supreme Court issued an opinion in another death penalty case, Brumfield v. Cain. By their nature, all death penalty cases are “high profile,” but Brumfield is even more so because of the identity of the victim—Corporal Betty Smothers, the mother of NFL player Warrick Dunn.

Kevan Brumfield was tried and convicted of Corporal Smothers' murder and sentenced to death. Post-trial, Brumfield claimed he was ineligible for the death penalty under Atkins because of intellectual deficiencies. He alleged the trial court erred in failing to hold a hearing on his Atkins claim and to provide funds to help him further investigate that issue.

He filed a federal habeas claim, and the Court, in a 5-4 decision, held that Brumfield was entitled to have the district court consider his Atkins claim.

In his dissent, Justice Thomas beautifully intertwines the stories of Corporal Smothers, her son, and her killer to further his position that the trial court properly rejected Brumfield’s Atkins claim.

The Inclusion of Details

Details are key in storytelling. The majority’s explanation of the crime is two sentences long and contains only sparse details:

Petitioner Kevan Brumfield was sentenced to death for the 1993 murder of off-duty Baton Rouge police officer Betty Smothers. Brumfield, accompanied by another individual, shot and killed Officer Smothers while she was escorting the manager of a grocery store to the bank.

Justice Thomas’ explanation is full of rich detail that paints a picture for the reader of the crime and provides a glimpse into the very different lives of Corporal Smothers and her killer. Through Thomas’ dissent, we learn the following about Corporal Smothers:

-Corporal Smothers was a 14-year veteran of the Baton Rouge Police

Department who was working a second job to support her six children.

-On the day she was killed, Corporal Smothers had worked a 10-hour shift before going to her second job at a grocery store. 

-As was her nightly practice, Corporal Smothers drove the store manager to a bank after the store closed to make the nightly deposit. The manager exited the vehicle to deposit the night’s earnings, and Brumfield and his accomplice opened fire, hitting Smothers five times in the forearm, chest, and head. She was pronounced dead on arrival at the hospital.

Thomas' details about Brumfield show a very different life:

-Brumfield “had worked only three months in his adult life because…he found drug dealing a far more effective way to make money.” Brumfield had previously been involved in the fatal shooting of another drug dealer and, after Corporal Smothers’ murder, battered a police officer in prison.

-Corporal Smothers’ death occurred during a two-week crime spree during which Brumfield had armed robbed a man who he apparently intended to kill but the man was saved when the gun, which Brumfield had put to the man’s head, misfired.

-Several days later, Brumfield armed robbed a woman and her daughter. Brumfield ordered the woman to give him her purse, which she did, but she pleaded with Brumfield to allow her to retrieve pictures from her son’s funeral that she kept inside. He responded “Bitch, you dead,” and drove off.

The Juxtaposition of Dunn and Brumfield

Justice Thomas’ story begins:

This case is a study in contrasts. On the one hand, we have Kevan Brumfield, a man who murdered Louisiana police officer Betty Smothers and who has spent the last 20 years claiming that his actions were the product of circumstances beyond his control. On the

other hand, we have Warrick Dunn, the eldest son of Corporal Smothers, who responded to circumstances beyond his control by caring for his family, building a professional football career, and turning his success on the field into charitable work off the field.

Justice Thomas continues by using storytelling techniques to detail that extent of that contrast:

 

Photo by Bill Feig
www.theadvocate.com

[Brumfield] admitted that, after riding around at night looking for a “hustle,” he had come up with the idea to steal the grocery store’s deposit. He described how he and [his accomplice] hid in the bushes waiting for the car to arrive, and how, when Lee looked back while trying to make the deposit, he started shooting….He was facing sentences on unrelated charges and had promised his pregnant girlfriend that he would obtain money to support her, their baby, and her child from a previous relationship while he was in jail….Brumfield…told an acquaintance right after the murder that he had just killed “a son of a bitch….”

Brumfield’s argument that his actions were the product of his disadvantaged background is striking in light of the conduct of Corporal Smothers’ children following her murder. Though [her oldest son, Warrick Dunn] turned 18 just two days before Brumfield murdered his mother, he quickly stepped into the role of father figure to his younger siblings. In his view, it “was up to [him] to make sure that everybody grew up to be somebody….”

[Dunn] set records on the field while coping with the loss of his mother….After four years at Florida State, Dunn was drafted by the Tampa Bay Buccaneers. Concerned that some of his siblings were struggling in Baton Rouge, he moved the three youngest into his home in Tampa Bay. Although the strain of playing for the Buccaneers and raising his family weighed on him, he “accepted it as [his] responsibility to make sure they stayed on the right path.”

A Picture is Worth a Thousand Words

In an appendix, Justice Thomas includes this photo of Corporal Smothers, in uniform, published in Warrick Dunn’s book. The picture shows a beautiful young Betty Smothers resting her arm on the door of her patrol car. She is not smiling but looks happy, focused, and proud of her uniform. For the power of his storytelling, Justice Thomas’ inclusion of this picture tells a greater story than his words can and puts a face to the otherwise faceless victim.

The Powerful Closing

After a lengthy explanation of the background, purposes, and language of the Antiterrorism and Effective Death Penalty Act(AEDPA), Justice Thomas concludes by again employing his storytelling techniques to evoke emotion:

Over 20 years ago, Brumfield deprived the people of Baton Rouge of one of their police officers and six children of their mother....What is perhaps more disheartening than the majority’s disregard for both AEDPA and our precedents is its disregard for the human cost of its decision. It spares not a thought for the 20 years of judicial proceedings that its decision so casually extends. It spares no more than a sentence to describe the crime for which a Louisiana jury sentenced Brumfield to death. It barely spares the two words necessary to identify Brumfield’s victim, Betty Smothers, by name. She and her family—not to mention our legal system—deserve better.

I respectfully dissent.      

I hope we all agree—regardless of our beliefs about the death penalty—that Justice Thomas' storytelling is powerful.