The Bundy Express – Part 1
Contrary to popular belief, the courts moved Bundy as fast as they could. Never – not once – did any court, anywhere, decide a single issue in his favor. Even the prosecutors acknowledged that Bundy’s lawyer never employed delaying tactics. Though people everywhere seethed at the apparent delay in executing the archdemon, Ted Bundy was actually on the fast track.
Bundy’s lawyers lodged their required appeals to the Florida Supreme Court within two months after each of his trials. Then Robert August Harper filed full briefs within the allotted time. Newt, the State of Florida was given time to digest and respond to Harper’s appeals. In spring 1982, the first of the two cases was put on the docket for oral argument.
Two and a half years may have seemed like a very long time, but in context, it was entirely understandable. The Florida Supreme Court was dealing with roughly one death case per week. Scores of condemned prisoners were ahead of Bundy in line, and each had a complicated appeal based on a large trial record. Each record had to be scrutinized, each appeal contemplated. And when the court finally got to Bundy, the justices were faced with the combined records of two trials comprising some twenty-eight thousand pages. Bundy’s was the largest and most complicated criminal case in the court’s history.
At least one of Harper’s arguments deeply concerned the justices. Harper challenged the use of hypnosis to “refresh” the memories of witnesses. He presented scientific evidence to suggest that hypnotism is unproven and unreliable.
Based on the Bundy trials, the justices decided to outlaw the use of hypnotically refreshed testimony in Florida courts, but after long contemplation they carved a narrow exception for Bundy himself. In 1984 and 1985, they rejected the Chi Omega and the Leach murder trial appeals, saying that Bundy’s cases contained “sufficient evidence…. absent the tainted testimony, upon which the jury could have based its convictions.” Therefore, the erroneous use of hypnosis was, in these cases, “harmless.” Technically, the court was applying an invalid test to deny Bundy’s demand for new trials. The proper test for deciding whether an error is “harmless” is whether the “tainted testimony…. might have contributed to the conviction.” In the two Bundy cases, the hypnotically refreshed testimony provided the only eyewitness links; surely it “might have contributed” to the conviction. The Florida Supreme Court had bent over backwards to affirm Bundy’s convictions – creating a “Bundy exception” to the law. Each appeal took five years to complete, but in keeping with a larger sense of justice, the court found a way to preserve the death sentences.