The Florida Bar
The Florida Bar Journal
May, 2014 Volume 88, No. 5

Page 44

The Hanging Judge, a Novel
By Michael A. Ponsor
Reviewed by Rory B. Weiner
Anyone who ponders the ethics of the death penalty must confront two irreconcilable, self-evident truths: The government is never permitted to execute an innocent person, and its justice system is administered by humans who make mistakes. This is the tension that runs through The Hanging Judge, a fast paced, entertaining, yet serious, novel by Judge Michael A. Ponsor, senior U.S. district judge in the U.S. District Court for the District of Massachusetts.

Judge Ponsor personally experienced this tension when he presided over the 2000-2001 death penalty case of Kristen Gilbert, the nurse found guilty of first-degree murder for killing patients at the Northampton Veterans Affairs Medical Center in Leeds, Massachusetts. (Full disclosure: I was one of Judge Ponsor’s law clerks during the Gilbert trial.) Although Massachusetts had abolished the death penalty in 1984, and had not conducted a death penalty case in almost 50 years, the federal government took jurisdiction of the case by indicting Gilbert under the Federal Death Penalty Act of 1994, which allows the federal government to seek the death penalty for murder in a federal facility. The jury spared Gilbert the death sentence; she received life without parole. After the case, Judge Ponsor described his experience as “the most complicated and stressful thing I’ve ever done.” “Mistakes will be made,” he reflected, “because it is simply not possible to do something this difficult perfectly, all the time.”

The Hanging Judge is Ponsor’s fictionalized account of this experience. In the book, the recently appointed Judge David S. Norcross for the District of Massachusetts in Springfield presides over the death penalty case of Clarence “Moon” Hudson, a self-proclaimed reformed gang member, drug dealer, and murderer, who has settled down with an upper-middle-class wife and a new baby. He is accused of a drive-by shooting of a rival gang member. The politically motivated U.S. attorney directs the case be moved from state court to federal court by indicting Hudson under the RICO statute to seek the death penalty. His motivation is driven, in part, because the drive-by shooting also took the life of an innocent bystander, a hockey mom and pediatric nurse who volunteered at an inner city clinic. The assistant U.S. attorney assigned to prosecute the case challenges her superior by asking him how the killing of the innocent bystander is an act in aid of racketeering, an essential element to convict under RICO. Undeterred, the U.S. attorney explains that the boys in Washington think Hudson is a good way to “break the ice” for death penalty cases in Massachusetts. The government then uses a statement from the driver in exchange for possibly avoiding his own death sentence as the basis to indict Hudson.

Although the Hudson case is fictionalized, Ponsor weaves the real death penalty case of Dominic Daley and James Halligan, both mistakenly hanged in Northampton in 1806 for the alleged murder of Marcus Lyon. The evidence against them was based on a 13-year-old boy’s testimony that he saw two men hanging around the area where Lyon had last been seen. This real death penalty story is powerful because while we ponder the fictionalized possibility that the government might execute an innocent man, Ponsor eerily reminds us that the government has executed innocent people; the fictional story’s lessons become that much more important to ponder.

What makes The Hanging Judge so successful is Ponsor’s ability to highlight the ethics of the death penalty with fast-paced prose and endearing characters and relationships. We meet the ambitious but cynical prosecutor; the brilliant, yet old and disheveled, “death qualified” defense attorney; the nagging, ostensibly innocuous pro se litigant; and, of course, the bright-eyed, dependable law clerks, whose lives all collide in the story’s dénouement. You’ll likely read the book in one sitting because it is that enjoyable and provocative.

The novel is published by Open Road and is 473 pages.

Rory B. Weiner is a member of The Florida Bar practicing in Brandon.

[Revised: 05-27-2014]