Ultimate Punishment Read online

  nudged the door wider: Miller-El v. Cockrell, No. 01–7662 (decided 2/25/03).

  raised the bar for a defense lawyer’s duty: Wiggins v. Smith, No. 02-311 (decided 6/26/03). The New York Court of Appeals also overturned that state’s first death sentence. People v. Harris, 98 N.Y. 2d 452, 779 N.E.2d 705, 749 N.Y.S. 2d 766 (2002); http://www.courts.state.ny.us/ctapps/decisions/julo2.htm.

  each state…imposed death for a long list of felonies: For death penalty history, see, e.g., Justice Marshall’s concurrence in Furman v. Georgia, 408 U.S. 238, 336–42 (1972); “Background and Developments” in The Death Penalty in America: Current Controversies, Hugo Adam Bedau, ed. (Oxford University Press, 1997) [hereafter “The Death Penalty in America”], pp. 3–25; N. Levi, “Veil of Secrecy: Public Executions,” 55 Federal Communications Law Journal 131 (2002), pp. 131–41.

  1966…majority…opposed capital punishment: In 1966, Gallup reported that 47 percent of Americans were against the death penalty, while 42 percent were for it. The numbers in favor soon climbed, especially after the decision in Furman. See J. Jones, “The Death Penalty,” posted on the Gallup Organization’s Web site, http://www.gallup.com/poll/analysis/iao20830.asp, for a detailed summary of Gallup’s findings about public opinion on the death penalty over the years.

  Furman v. Georgia: 408 U.S. 238 (1972).

  imposing death, was constitutional after all: Gregg v. Georgia, 428 U.S. 153 (1976) held that the death penalty is not unconstitutional in every instance in which it is applied.

  DNA…showed…innocent people…convicted: The New York Times puts the number of recent DNA exonerations as 123. T. Simon, “Freedom Row,” The New York Times Magazine, 1/25/03, p. 32.

  Death Penalty Information Center counted 108 persons: Summaries of all innocence cases are posted at the Death Penalty Information Center’s Web site at http://www.deathpenaltyinfo.org/innoc.html.

  dozens of additional cases: The Death Penalty Information Center catalogs cases of probable and possible innocence, in which there has not been a legal outcome impugning the original judgment, at http://www.deathpenaltyinfo.org/article.php.scid-6&did-111#Released.

  only 49 percent of Americans favored capital punishment: Gallup reported that only 52 percent of Americans believe that the death penalty is imposed fairly, while 40 percent do not. Gallup News Service, 5/20/02. ABCnews.com 1/24/03 featured the poll results that showed that less than half of Americans support the death penalty when life in prison is offered as an alternative. Without that choice, 64 percent said they favored the death penalty. All of these results, and many others, appear at http://www.deathpenaltyinfo.org/Polls.html.

  Commission…assembled to represent diverse viewpoints and experience: The Members of the Commission are described at Report at v.

  confessions are obtained in roughly 40 percent of arrests: Professor Paul Cassell of the University of Utah is among those who have made the most comprehensive efforts to determine U.S. confession rates, as part of his controversial studies aimed at proving that the U.S. Supreme Court’s ruling in Miranda v. Arizona, 384 U.S. 435 (1966), has impeded law enforcement. See, e.g., P. Cassell, “Miranda’s Social Costs: An Empirical Reassessment,” 90 Northwestern University Law Review 387 (1996), and a related piece Cassell published on the Web site of the National Center for Policy Analysis, “Handcuffing the Cops: Miranda’s Harmful Effects on Law Enforcement,” posted at http://www.ncpa.org/studies/s218/s218a.html, and his confession data at http://www.ncpa.org/studies/s218/s218a.html#confession.

  “All I did was hold that little girl down”: To be precise, the “I held her down” statement was introduced in Alex’s second and third trials as an overheard remark. It was testified to by Marquez in paraphrase when Alex was first tried in 1985. See People v. Hernandez, 121 Ill. 2d 293, 302, 521 N.E.2d 25, 117 Ill. Dec. 914 (1988). The Marquez encounter and related evidence is described in our brief, pp. 8–10, 15–16, 75–83, and in Hernandez I, 121 Ill. 2d at 303, Hernandez II, pp. 6–8.

  Alex’s IQ was low: although prosecution experts found Alex’s IQ higher, an IQ of 73, under new legislation passed in Illinios in May 2003, would render a defendant presumptively ineligible for the death penalty. See C. Parsons and R. Long, “Death Penalty Reform Goes to Blagojevich,” Chicago Tribune [Final Edition], 5/30/03, p. 1.

  Gary Gauger: Gauger’s case, like Alex’s, was reversed in an unpublished decision of the Illinois Appellate Court Second District, this one on 3/8/96. People v. Gauger, 277 Ill.App.3d 1114, 698 N.E.2d 724. See also 168 Ill. 2d 606, 671 N.E.2d 736, 219 Ill. Dec. 569 (1996). In 1997, James Schneider and Randall E. Miller, members of the Outlaws motorcycle gang, were indicted in federal court in Milwaukee for racketeering charges that included killing the Gaugers. Schneider pled guilty in 1998. Audiotaped admissions by Miller about his role in the murders were played at his trial in 2000, in which he was convicted. See “Motorcycle Gang Member Detailed Illinois Murders,” Beloit Daily News, 3/10/99, posted at http://www.beloitdailynews.com/399/ 1wis 10.htm and http://www.law.northwestern.edu/depts/clinic/wrongful/exonerations/Gaugerchart.pdf.

  Ronald Jones: Ronald Jones’s conviction was originally affirmed by the Illinois Supreme Court, People v. Jones, 156 Ill. 2d 225, 620 N.E.2d 325 (1994), and subsequently vacated. 1997 WL 1113760. His exoneration was recounted in the pages of the Chicago Tribune on 5/18/99 and in The New York Times the next day. Despite the DNA corroboration for Jones’s account of being beaten, there is no record of disciplinary action regarding the two detectives who interrogated Jones.

  Cruz case…no confession: Thomas Vosburgh and Dennis Kurzawa were indicted in sealed indictments returned in December 1996. Included were charges for perjury for testifying to the vision statement. Thomas Knight was charged with knowingly presenting false evidence to the grand jury. See Victims, pp. 284–85; A. Barnum and T. Gregory, “Impending Indictments in Cruz Scandal Rock DuPage,” Chicago Tribune [DuPage Sports Final], 12/10/96, p. 1; T. Gregory, “DuPage Judge Is Target in Cruz Case,” Chicago Tribune, 12/11/96.

  forgotten about the statement: The “vision statement” is described in Cruz I, 121 Ill. 2d at 324, and Cruz II, 162 Ill. 2d at 322. See also Victims, pp. 70–71.

  Central Park jogger case: S. Maull, “Judge Throws Out Convictions in Central Park Jogger Case,” Associated Press, 12/20/02, posted at http://www.post-gazette.com/nation/20021220apjoggercasenat2p2.asp. As in Cruz and Hernandez, the New York City police continue to insist they got the right men. See, e.g., http://www.nyc.gov/html/nypd/html/dcpi/jogger_case_panel.html.

  Porter…falsely identified: See People v. Porter, III Ill. 2d 386, 391–93, 489 N.E.2d 1329, 95 Ill. Dec. 465 (1986), for the Illinois Supreme Court’s confident account of Porter’s identification.

  Buckley…identified: See Victims, p. 86, for a description of the eyewitness testimony regarding Buckley.

  mistaken identification…leading cause of wrongful convictions: T. Simon, “Freedom Row,” The New York Times Magazine, 1/25/03, p. 32, states that incorrect eyewitness identifications remain the largest reason for wrongful convictions nationwide. See also C. R. Huff, “Wrongful Conviction: Causes and Public Policy Issues,” Criminal Justice, Spring 2003, pp. 15–16. The Commission found two articles about eyewitness testimony especially significant: G. Wells, “Eyewitness Identification Procedures: Recommendations for Lineups and Photospreads,” Law and Human Behavior, Vol. 22, No. 6, 1998, and “Eyewitness Identification: A Guide for Law Enforcement,” prepared by the Technical Working Group for Eyewitness Evidence sponsored by the National Institute of Justice, U.S. Department of Justice, October 1999.

  “caution and great care”: Instruction 3.13, “Pattern Criminal Federal Jury Instructions for the Seventh Circuit,” 1998, posted at http://www.ca7.uscourts.gov/Rules/pjury.pdf, is an example of an instruction containing the traditional warning to jurors to take accomplice testimony with “caution and great care.”

  Burrows…Jimerson…Williams: See People v. Joseph Burrows, 148 Ill. 2d 196, 592 N.E.2d 997 (1992), and 17
2 Ill. 2d 169, 665 N.E.2d 1319 (1996) (affirming order for new trial) and Northwestern’s Center on Wrongful Convictions summary of the case at http://www.law.northwestern.edu/depts/clinic/wrongful/exonerations/Burrows Chart.pdf; People v. Jimerson, 166 Ill. 2d 211, 652 N.E.2d 278 (1995), and R. Warden’s lengthy chronology of the case popularly known as the Ford Heights Four, posted at http://www.illinoisdeathpenalty.com/chron.doc.

  juries fail in their enshrined role: For a brief recounting of the evolution of the jury as bulwark against governmental abuse, see my short piece about the trial of William Penn, “Order in the Court,” The New York Times Magazine, 4/18/99, p. 25.

  avoid the death penalty…by pleading guilty: For example, “The Federal Death Penalty System: A Statistical Survey” published by the U.S. Department of Justice, 9/12/00, http://www.usdoj.gov/dag/pubdoc/dpsurvey.html, DoJ’s survey of federal death penalty cases from 1995 to 2000, showed that of 108 cases approved for capital prosecution that had proceeded through trial, 51 defendants had avoided death by pleading guilty. Forty-one had gone to trial, with 21 receiving death sentences. http://www.usdoj.gov/dag/pubdoc/_table_set_i_corrected.pdf.

  an innocent person…might plead: Such a plea is constitutional. North Carolina v. Alford, 400 U.S. 25 (1970). While the Commission contemplated recommending a ban on plea negotiations once the state had decided to seek death, both defense lawyers and prosecutors counseled against this. See Report, p. 124.

  any person who…will refuse: Witherspoon v. Illinois, 391 U.S. 510 (1968), held that mere disagreement with the death penalty does not disqualify a juror. Although Witherspoon essentially broadened, rather than narrowed, the potential venire in a capital case, it nonetheless contains language allowing disqualification of jurors who state that they will automatically vote against the death penalty, no matter what the trial evidence shows; see Witherspoon, 391 U.S. at 513–14n.5, 515–16n.9, 521–22n.20, the point upon which many subsequent courts have cited it. See, e.g., Lockhart v. McCree, 476 U.S. 162, 167n.1 (1986); People v. Harris, 98 N. Y.2d at 477.

  resulting jury pool is more conviction-prone: Witherspoon, McCree, and Harris, discussed in the preceding note, all dismissed the studies purporting to show that juries without death penalty objectors were more likely to convict. Witherspoon, 391 U.S. at 516–17 (“data…are too fragmentary and tentative”); McCree, 476 U.S. at 171 (“We have serious doubts about the value of these studies in predicting the behavior of actual jurors”); Harris, 98 N.Y.2d at 479n.8. More to the point, McCree held flatly that even if the studies were correct, a conviction-prone jury does not violate the Constitution, since the state has a legitimate interest in seating a jury that will follow the law. 476 U.S. at 176–84.

  one in every fifty convictions…resulted in a capital sentence: Analysis of the frequency of death sentences in Illinois is set forth at the Report, at 197, 204n.28 and in Technical Appendix, Section 1.

  Wyoming…has the highest death-sentencing rate: Liebman collected per capita death-sentencing rates for thirty-four of the thirty-eight states that impose the death penalty, which showed Wyoming to be the national leader at nearly 6 percent of all homicides. http://justice.policy.net/jpreport/section7.html#a and http://justice.policy.net/jpre port/figure17.html. The same study showed that Illinois’ proportion of death sentences per first-degree homicides is comparable to the nation as a whole. Liebman reports that for the thirty-four capital-sentencing states, an average of 14.9 death sentences were imposed for every 1,000 homicides during the study period, of 1973–95, meaning roughly 1.5 percent: http://justice.policy.net/jpreport/section7.html#a. Liebman’s figures, however, consider “homicides,” rather than the narrower universe of first-degree murders Radelet and Pierce studied. According to Liebman’s figures, Illinois averaged 9.89 death sentences per 1,000 homicides, roughly I percent, less than the national average. http://justice.policy.net/jpreport/figure17.html and http://justice.policy.net/jpreport/illinois.pdf.

  death…not…automatic punishment for first-degree murder: In Woodson v. North Carolina, 428 U.S. 280 (1976), the Supreme Court declared unconstitutional a North Carolina statute that imposed death for all first-degree murders, holding that the Eighth Amendment’s ban on cruel and unusual punishment requires contemplation of the circumstances of a particular crime and the character of a defendant before death may be imposed.

  “the worst of the worst”: “The death penalty’s reserved for the worst of the worst. And I think from the evidence that all of you are aware of over the last month or so these folks qualify,” said Commonwealth Attorney Paul Ebert of Prince William County about the Beltway Sniper suspects. http://www.cnn.com/2002/US/11/07/sniper.case/. See Gregg v. Georgia, 428 U.S. at 198 (there should be a meaningful basis for distinguishing the few cases in which the death penalty is imposed from the many where it is not).

  intended to be a burglary, committed by…Hispanics: See Victims, pp. 26–27, for an account of the Spanish-surnamed burglar and at 120 for quotations from the lead detective, John Sam, about the theory that the crime was committed by a gang of Hispanic burglars.

  sought an outside legal opinion: R. Karwath and J. Sjostrom, “Burris Holds Firm on Nicarico Case,” Chicago Tribune [DuPage Sports Final Edition], 3/7/92, p. 5, reported the remarks of Anton Valukas, who’d been hired to review the case.

  Sam…had quit: Sam’s resignation was news. See “Resignations Cast Doubts on Handling of Nicarico Case,” Chicago Tribune, 12/15/85, p. I, and Victims, pp. 62–64.

  James Teal: Teal’s doubts are recounted at Victims, pp. 60–62 and 127–28. After Hernandez’s second conviction, the former police chief wrote a letter to the sentencing judge in Hernandez’s behalf expressing the view that Alex was innocent. Hernandez Brief, p. 40.

  Marquez…disavowed his testimony: Marquez’s recantations are described in the Hernandez Brief, p. 29n.12.

  Marquez evidence through a police officer: The Hernandez Brief, p. 9, describes the officer’s testimony with citations to the court record.

  “impossible to determine”: The Hernandez Brief, pp. 26–28, quotes Judge Nelligan’s remarks from the trial record and his summary of the officer’s testimony.

  “the one statement that tied this Defendant”: This quote comes from Judge Nelligan’s remarks at Alex’s sentencing, set out in the Hernandez Brief, p. 26–28.

  any rational jury: Jackson v. Virginia, 443 U.S. 307, 319 (1979), sets forth the standard for review of a jury’s verdict. In Hernandez II, p. 23, the Court followed the familiar practice of quoting Jackson and underlining “any,” so the verdict cannot be disturbed if “any rational trier of fact” could have reached the same conclusion. See People v. Collins, 116 Ill. 2d 237, 261 (1985).

  Nelligan…regarded the meaning…as “impossible to determine”: In Alex’s appeal, we maintained that the Marquez statement, as testified to by the officer, was so devoid of context as to be meaningless, and therefore improperly received in evidence. The Appellate Court declined to address the issue, finding that the trial lawyers had failed to offer a timely objection, making the question unreviewable on appeal. See Hernandez II, pp. 16–17. During argument, the court had appeared so interested in the issue that afterwards both parties made supplemental filings on the law.

  Matt Tanner and Leslie Suson, and I appeared before the Illinois Appellate Court: See Victims, p. 261, for an account of the oral argument in Hernandez II.

  appellate courts refuse to…“retry his case”: Thus in reviewing the evidence of Alex’s guilt, the Court in Hernandez II stated, “It is not the province of this court…to retry the defendant,” meaning, in short, “It’s not up to us to decide if he’s actually guilty.”

  Porter’s lawyers…developed…proof that…Simon: Porter’s lawyers’ contentions regarding Alstory Simon were summarized by the Illinois Supreme Court: “The evidence pointed to is the proposed testimony of several persons which could have suggested Alstory Simon, rather than defendant, killed Hillard and Green. The evidence, summarized below, is stated in af
fidavits and recorded sworn oral statements filed in support of defendant’s post-conviction petition. Joyce Haywood would have testified that the victims had walked to the park with Alstory Simon and his girlfriend, Inez Johnson. The victims’ mothers and Christina Green, Marilyn Green’s sister, would have corroborated the point. Ricky Young could have testified that Hillard had been selling drugs for Simon and that a dispute existed between Simon and Hillard over money. Roy Davis, Hillard’s brother, would have stated, in contrast, that no animosity existed between defendant and Hillard, who were members of the same street gang. Finally, Joyce Haywood would have revealed further that Simon had threatened her when she had asked about what had happened in the park.” People v. Porter, 164 Ill. 2d 400, 403–4, 647 N.E.2d 972, 207 Ill. Dec. 479 (1995). See also Porter v. Warden, No. 95 C 4111 (United States District Court for the Northern District of Illinois, 4/3/96); Porter v. Gramley, 112 F.3d 1308 (7th Cir. 1997); People v. Porter, 111 Ill. 2d 386, 489 N.E.2d 1329, 95 Ill. Dec. 465 (1986). No court ever found Porter’s evidence of innocence compelling. Thus the Seventh Circuit said in Porter’s last habeas corpus appeal: “[T]he affidavits and statements that Porter has submitted are far from convincing, especially when weighed against the direct, eyewitness testimony implicating Porter. Much of the evidence suggesting that someone other than Porter committed the murders, for example, is second-and third-hand in nature, and the first-hand information (such as the affidavit stating that victim Jerry Hillard was arguing in the park that night with someone other than Porter) can only be considered weak circumstantial evidence of Porter’s innocence.” Porter v. Gramley, 122 F.3d 351, 353 (7th Cir, 1997).