Can the State Kill Someone Twice? The Strange and Disturbing Case of the Death of Willie Francis

Having heard oral arguments in Baze v. Rees, the Supreme Court will soon decide whether the drugs used in lethal injection executions constitute cruel and unusual punishment as prohibited by the Eighth Amendment. It’s a question the Court has not addressed in more than sixty years, in a case that some legal scholars believe was botched just as badly as the state execution of a stuttering, seventeen-year-old African-American named Willie Francis by a drunken guard and inmate from the Louisiana State Penitentiary .

Just after noon on May 3, 1946, in a small jail along the Bayou Teche in St. Martinville, Louisiana, Ephie Foster, a prison camp captain and the state’s executioner, looked down at the teenaged black boy sitting in the electric chair known as “Gruesome Gertie.”

“Good-bye, Willie,” Foster bellowed. Then he pulled the switch, sending the youth into convulsions. Willie’s lips puffed from the slit in the death mask. His body heaved and strained against the leather straps and the chair began to rock and slide away from the gallery.

Witnesses were aghast. Then Willie began to scream. “I am N-N-Not Dying!”

Finally, after a second surge of current failed to do the job, the sheriff had seen enough and ordered the generator cut off. As deputies unstrapped the youth, Willie Francis rose on his own two legs and literally walked away from the electric chair. A phone call was placed to a puzzled but irate Governor Jimmie Davis, who directed officials to quickly fix the state’s portable electric chair. Willie would have to return to the lap of Gruesome Gertie in just six days.

So began the strange, year-long odyssey of Willie Francis—one that would make front page headlines across the nation as the U.S. Supreme Court contentiously debated whether or not Louisiana had the right to re-execute the teenager under the Eighth Amendment, which forbids methods of execution that “cause torture or a lingering death.”

After a visit from Willie’s desperate father, Bertrand DeBlanc, a young Cajun lawyer just back from World War II, stepped into the fray. DeBlanc lived across the street from the jail and had been horrified by what he had seen that fateful day in St. Martinville. During Willie’s trial for the murder of a local pharmacist, Willie’s court appointed attorneys had called no witnesses and presented no evidence on behalf of their client. The prosecution’s only evidence was obtained when Willie confessed under interrogation nearly a year after the crime and without the presence of legal counsel. Willie’s public defenders had abandoned him after the guilty verdict was read and failed to file a single appeal.

As DeBlanc prepared a stay of execution, he himself became haunted by what he described as “the abysmal darkness which shrouds the trial of Willie Francis.” The state had argued that Willie had killed the pharmacist during a “stickup,” but the teenager later told reporters, “I wasn’t after money.” In a signed confession, Willie cryptically wrote, “it was a secret about me and him.” None of this was brought to light in Willie’s trial, and because no bills of exceptions had been filed, DeBlanc was unable to argue facts from the case in his attempt to save the youth from a second trip to the chair.

Instead, DeBlanc appeared with attorney J. Skelly Wright before the U.S. Supreme Court in November of 1946, and attempted to persuade the justices that another attempt to execute Willie Francis violated the double jeopardy clause of the Fifth Amendment, as well as the cruel and unusual punishment clause of the Eighth Amendment. They were stepping out on a legal limb, and Justice Stanley Reed said as much in his opinion, stating that “an accident, with no suggestion of malevolence” did not violate due process under the Fourteenth Amendment. By a 5-4 vote, the Court rejected both the double jeopardy and the cruel and unusual punishment arguments.

Justice Harold Burton, in his dissent, wrote, “How many deliberate and intentional reapplications of electric current does it take to produce a cruel and unusual punishment? While five applications would be more cruel and unusual than one, the uniqueness of the present case demonstrates that, today, two separated applications are sufficiently ‘cruel and unusual’ to be prohibited. If five attempts would be ‘cruel and unusual,’ it would be difficult to draw the line between two, three, four and five.”

With all hope apparently gone and a new date set for the execution of Willie Francis, DeBlanc was sitting in his office when an old friend stopped by and informed the Cajun lawyer that the two executioners had been seen drinking all night and into the morning of the May 3rd, 1946. One witness stated that while he had seen other executions, Willie’s was the “most disgraceful and inhumane” exhibition he’d ever seen, and that the men responsible for wiring the chair “were so drunk that it was impossible for them to have known what they were doing.”

No longer could Willie’s ordeal be termed, as Justice Felix Frankfurter wrote, “an innocent misadventure.” With just twenty-four hours before Willie’s scheduled execution, DeBlanc obtained signed affidavits and quickly filed a petition with the Supreme Court, citing “negligence on the part of the State.” This time, the Court took notice of the “grave nature of the new allegations,” but said it could not consider the petition until the supreme court of Louisiana had ruled. The U.S. Supreme Court had essentially given DeBlanc legal advice on how to save the life of Willie Francis.

Even Frankfurter, who admitted that his decision to allow Louisiana to re-execute the youth had “told on my conscience a great deal,” thought it was a“shocking” and “barbaric” thing to do. In fact, Frankfurter was so bothered by the state’s lust for blood that he recruited a high-standing lawyer friend from Louisiana to work behind the scenes, unbeknownst to his fellow brethren, to secure a last minute pardon for Willie Francis and effectively overturn his own decision.

As a result, the full record of Willie’s botched execution and Louisiana’s negligence never did return to the Supreme Court. His case continues to be cited in countless death penalty decisions and opinions, and Willie Francis’s “innocent misadventure” lives on, as legal scholar William M. Wiecek notes, “misapplied to perpetuate state torture.”