Death Watch: Judge's "Horrible Bigotry" Not Enough to Force New Trial

The 5th U.S. Circuit Court of Appeals doesn't dispute that the judge in Randy Halprin's trial was a racist. But in its Sept. 23 ruling, the 5CA says there's nothing it can do about it now that will help Halprin, a member of the notorious Texas Seven, scheduled to be executed Oct. 10.

Vickers Cunningham

Halprin's attorneys allege that his trial was biased beyond repair and a new one is in order. The first sentence of their appeal to the 5CA reads: "The Honorable Vickers Cun­ningham, the presiding judge at Randy Halprin's capital trial, is a racist and anti-Semitic bigot who described Halprin – a Jewish man – as 'that fuckin' Jew' and a 'goddamn kike.'" Cunningham presided over most of the trials of the Texas Seven, a group of inmates who broke out of prison in 2000 and robbed a sporting goods store, then shot down Irving police officer Aubrey Hawkins when he responded to the alarm. They hid out for months before a tip to the television show America's Most Wanted led authorities to Colo­rado, where they apprehended six of the seven men in 2001 (one killed himself to avoid capture). One after another, the defendants received death sentences from Cun­­ning­ham; four have already been executed. Patrick Murphy, whose execution was stayed in March after he'd asked for a Bud­dhist priest to attend to him in the death chamber, is now scheduled to die in November.

Randy Halprin

Cunningham's bigotry came to light 15 years after the trials, when he was running in the 2018 Republican primary for a seat on the Dallas County Commissioners Court. Cunningham's brother told The Dallas Morning News about the living trust Cunningham had set up for his children – allowing them to receive shares of their inheritance only upon marrying straight white Christians. In a video interview with the News, Cunningham said, "I'm supporting what my beliefs are." When asked if he had ever used the "N-word," he gazed pensively into the air and waited nine seconds before answering no. This news broke on the last day of early voting in the run-off, in which Cun­ning­ham had been heavily favored; he ended up losing by 25 votes. He and other family members deny he is a racist; he still practices law in Dallas today.

Halprin's appeal to 5CA is replete with other examples of Cunningham's bigotry. Tammy McKin­ney, who grew up with Cun­ningham and knew him well, is quoted as saying he regularly used language "such as 'nigger,' 'wetback,' 'spic,' 'kike,' 'the fuckin' Jews.'" She said Cunningham took pride in the death sentences he handed out to the Texas Seven and remembers him saying, "From the wetback to the Jew, they knew they were going to die."

Amanda Tackett, who worked on Cun­ning­ham's earlier failed run for Dallas County district attorney in 2006, also remembers his demeaning language. She says Cunning­ham often used the N-word and would place it in front of a black person's name, as he did with former Dallas D.A. Craig Watkins, whom he referred to as N-word Watkins.

Halprin's request for a new trial attracted widespread support; over 100 Jewish attorneys and community leaders filed a brief in his favor, and The Washington Post backed his appeal. Current Dallas County D.A. John Creu­zot did not oppose a retrial. But there were technicalities to consider, rules of procedure. The 5CA said that for the appeal to be considered, it had to have something new in it; while Halprin's defense attorneys argued that they didn't know about Cunning­ham's racism until the 2018 election – and thus it was new evidence – the judges ruled that since Cunningham had been racist all along, it did not constitute new grounds for appeal, and in any event wouldn't matter. For the 5CA to order a new trial, the evidence of bias would have to be so compelling that it would make a normal jury change its verdict; the judges ruled that Halprin's jury would still have found him guilty even if they'd known of Cunningham's bigoted views.

Now, time is growing short. Halprin's lawyers will surely ask the U.S. Supreme Court to review his case and order a new trial, but SCOTUS hasn't replied to questions about their plans. If they don't hear the case, the appeal has nonetheless offered a picture of the judiciary rarely seen, though often suspected. In that regard, the 5CA felt compelled to draw a distinction between Cun­ning­­ham's views and its own. The statement of principle came in a footnote: "Cunningham's racism and bigotry are horrible and completely inappropriate for a judge."