Ultimate Punishment Read online

  We spent a number of months doing this. Many of our findings flew in the face of what I had taken for granted during my years as a prosecutor, and even as a defense lawyer. For instance, one of the fixed stars of the universe of criminal justice is the idea that nobody voluntarily confesses to a crime she or he didn’t commit. For this reason, a confession is regarded as the best possible evidence, and cops work hard in their interrogations of suspects to get admissions to the crime. Informed estimates are that confessions are obtained in roughly 40 percent of arrests, and that in nearly a quarter of all prosecuted cases the defendant would not be convicted but for his own incriminating statements.

  Thus, the persistence of purported confessions by innocent people in Illinois’ exonerated cases was a wake-up call to me, albeit one where I’d heard the first ring years before. The only evidence that Alex Hernandez had any actual role in the murder of Jeanine Nicarico was a declaration he supposedly made to a state informant: “All I did was hold that little girl down, while they hit her in the head.” The alleged statement was shocking—but so were the circumstances under which it was said to have been gathered.

  Alex’s IQ was low—defense experts put it at 73—and psychologists for both sides testified that his behavior years ago reflected what a sense of his deficits could produce in a young person: a tendency to seek attention, especially by telling wild tales. Alex had come forward originally in response to public reports of the $10,000 reward, claiming to know something about a mysterious Ricky who’d spoken of the murder, but Alex’s so-called information only led the police in circles. Well aware of Alex’s problems, the police continued to assure Alex he would be rewarded for helping them, even though they regarded him as a suspect (notwithstanding the fact that he had only a single misdemeanor conviction for theft).

  One day, they put Alex in a room with a childhood friend, Armindo Marquez, who was in custody on a burglary rap. The police had instructed Marquez to say—falsely—that he had information about another murder in Bolingbrook, a nearby town, and to suggest that Alex and he tell police details of that case and the Nicarico murder and then share the $10,000 reward. To cement the idea, detectives actually put a shoe box filled with cash in the room and had Marquez tell Alex it was the reward money. Marquez never required that what Alex and he tell the cops be true, and the record shows instead that they were making it up as they went along. Marquez spun out a bunch of phony details of the Bolingbrook crime, and Alex, who thought he was there to aid police and had been told that he could get the reward by extracting the Bolingbrook information, responded with a number of statements about the Nicarico murder. It was in this context that Alex supposedly said, “I held her down.” Virtually every other statement he made about the crime that was capable of extrinsic verification proved to be false. To make it worse, after he was out of jail, Marquez said that his testimony against Alex was fabricated. Nor did the state ever explain how someone, no matter how weak-minded, would believe he could confess to a horrible murder and be free to use reward money. Logic notwithstanding, though, Alex spent the next twelve years in the penitentiary.

  Interrogation techniques that clearly risked eliciting false statements were not limited to Hernandez’s case. Gary Gauger was the first to discover the body of his father in April 1993, in the family motorcycle shop in McHenry County, an exurban area west of Chicago. When the police arrived, they found Gauger’s mother slain as well, and took Gauger as the prime suspect in the murders. They interrogated him for twelve hours, until he made a statement which the police called a confession, and which Gauger says was a hypothetical discussion they encouraged about how the murder occurred. Gauger—whose case is among those depicted in the popular play The Exonerated—was sentenced to death. Years later, two members of the Outlaws motorcycle gang were convicted of crimes that included the Gauger parents’ murders.

  Sometimes the methods utilized in gaining statements were not subtle. Ronald Jones, convicted of a rape and murder in Chicago in 1985, maintained that his confession had been beaten out of him. The state claimed the marks visible on Jones’s face at the time he was arrested were from a skin condition. Years later, DNA evidence categorically established that Jones’s confession was false.

  And there was also the Cruz case, where a grand jury found probable cause to believe there was no confession at all. The police claimed Cruz had told them about a vision of the crime, filled with details only the killer could know. Yet somehow the DuPage officers also maintained they had forgotten about the statement until days before the start of Rolando’s and Alex’s trial in 1985 and had also neglected to make any written report of it in the first place—remarkable lapses given usually rigid law enforcement practices.

  While false confessions were the dominating problem in the Illinois exonerations, and have appeared in other jurisdictions, as in New York City’s Central Park jogger case, where DNA evidence indicated five young men had gone to the penitentiary for a rape committed by someone else, the thirteen Illinois cases also called into question other forms of evidence in which courts and lawyers have long placed confidence. When I started trial practice twenty-five years ago, an eyewitness was regarded as the evidentiary gold standard. What better proof could you have than a bystander who saw the whole crime take place and could thus confidently name the perpetrator? Subsequent psychological research has demonstrated that the sheer extraordinariness of witnessing a crime challenges perception. Anthony Porter was falsely identified as a multiple killer by two people who had often seen him around the neighborhood where they all lived. Stephen Buckley, Cruz and Hernandez’s original co-defendant, who bears some resemblance to Brian Dugan, was also identified as having been near the crime scene by an eyewitness. Indeed, mistaken identification has been named as the leading cause of wrongful convictions nationwide.

  On the other hand, sometimes the road to death row in these cases had led along byways long recognized as dangerous to the truth. The risk that accomplices and jailhouse snitches will lie to win leniency in their own cases is traditionally acknowledged in jury instructions, which tell jurors, for example, that the testimony of such persons “must be considered with caution and great care.” Joseph Burrows, Verneal Jimerson, and Dennis Williams were all sent to death row by the bogus inventions of co-defendants.

  Whatever the particulars of these cases, though, the bottom line was the same. Being accused of a grisly murder was a far greater peril to an innocent person than I’d recognized years before.

  6

  CONVICTING THE INNOCENT

  UNDERLYING THE EXONERATIONS in Illinois’ death row cases were a few fundamental questions. How could experienced police officers and prosecutors be taken in by false evidence—or even assume a role in manufacturing it? And how could juries fail in their enshrined role of protecting against such abuses and actually buy in?

  Thinking about Alex’s case and studying the other exonerations in Illinois, I eventually recognized that there is a unique array of factors in death penalty cases that can lead to wrongful convictions. Prosecutors in capital cases have extraordinary leverage over the accused. Defendants who avoid the death penalty do so most often by pleading guilty. Inherent in capital punishment is the risk that an innocent person faced with the choice of living or dying might plead. Many others, of course, accept the peril and demand a trial. When they get it, the law requires removing from the jury any person who says he or she will refuse to impose a capital sentence. It is difficult to imagine what else the law might do other than banish those who will not adhere to its command, but studies have repeatedly asserted that the resulting jury pool is more conviction-prone.

  Yet at the end of the day, the factor that is the greatest snare for the innocent is the nature of the cases themselves. In Illinois, in the last twenty-five years, approximately one in every fifty convictions for first-degree murder has resulted in a capital sentence. Even in Wyoming, which has the highest death-sentencing rate in the country, fewer than 6 percent of homici
des end up with a sentence of execution pronounced. That is consistent with the command of the U.S. Supreme Court, which has ruled that death may not be the automatic punishment for first-degree murder. In practice, capital punishment is reserved for “the worst of the worst,” that is, those crimes which most outrage the conscience of the community. Paradoxically, this makes for the capital system’s undoing, because it is these extreme and repellent crimes that provoke the highest emotions—anger, especially, even outrage—that in turn make rational deliberation problematic for investigators, prosecutors, judges, and juries.

  Under enormous pressure to solve these cases, police often become prisoners of their own initial hunches. A homicide investigation is not an academic inquiry allowing for even-handed consideration of every hypothesis. Instead, it’s conducted in an atmosphere where primitive fears about unknown, dangerous strangers imperil our sense of an orderly world. There is a strong emotional momentum to adopt any explanation. Cops often feel impelled to take the best lead and run with it.

  A few weeks before Jeanine’s murder, the Nicaricos had hired a Spanish-surnamed cleaning lady who turned out to have a son with a burglary record. He ultimately proved to be blameless in this case, but from that start grew the police theory that the crime had been intended to be a burglary, committed by a gang of Hispanics—even though no valuables were ever found missing from the Nicarico house. When Alex appeared, telling tales, he fit an existing preconception, a theory to which many officers became wedded the longer it persisted, making it virtually impossible for them to accept the fact that a white serial rapist, namely, Brian Dugan, was the actual culprit.

  If law enforcement professionals respond in this fashion to the emotionalism of grave crimes, it is foolhardy to expect anything better from the lay people who sit on juries. By the time of Alex’s third trial, in May 1991, the evidence against him was so scant that the DuPage County State’s Attorney’s Office actually sought an outside legal opinion to determine whether they had enough proof to get the case over the bare legal threshold required to ask a jury to decide the matter. By then, Dugan had admitted to the crime and DNA had excluded Alex as the rapist. John Sam, one of the lead detectives on the case, had quit the force because he believed DuPage had accused the wrong men, a point of view shared by the chief of police in Naperville, James Teal. And Marquez, who’d reported the I-held-her-down statement, had now disavowed his testimony.

  Instead, the state tried to offer the Marquez evidence through a police officer who’d been outside the room where Marquez and Hernandez met. The officer testified that he had no memory at all of the conversation. All he could do was recite the contents of a report he’d put together three weeks after the event, long after Marquez’s version of the encounter was known. The officer couldn’t understand Spanish, in which he acknowledged most of the conversation was conducted. He admitted being twelve feet from the door to the room and even at that didn’t know whether it was open or closed. He conceded that he’d destroyed his notes and that what he’d written down at the time wasn’t verbatim. And he had no memory of a single word Marquez had spoken to prompt the fragmentary responses from Alex contained in the police report. Later, the trial judge, John Nelligan, remarked, “It is impossible to determine the context…not to mention the obvious meaning of the language [the officer] recorded.”

  But even though a veteran trial judge couldn’t place any meaning on what he referred to as “the one statement that tied this Defendant indirectly to involvement in the death of Jeanine Nicarico,” the jury convicted. The case demonstrated to me the propensity of juries to turn the burden of proof against defendants accused of monstrous crimes. The notion of a ten-year-old girl being overpowered by an intruder and dragged from the safety of her parents’ home, sexually tortured, and then in the end beaten to death is so revolting that I used to explain Alex’s and Rolando’s convictions by saying that I thought Mother Teresa might have been in jeopardy if she were in the defendant’s seat. Jurors are unwilling to take the chance of releasing a monster into our midst, and thus will not always require proof beyond a reasonable doubt.

  An enduring problem is that the standards for review of juries’ fact-finding decisions in these highly emotional cases is the same as when a defendant is accused of stealing candy from a five-and-dime. Appellate courts are asked to assess whether any rational jury could have reached this conclusion, with the italics in place when the legal standard is stated. In so doing, courts must take all evidence “in the light most favorable to the verdict,” meaning that they must draw all inferences from the evidence and resolve all credibility questions in a way that supports the jury’s decision. An appellate judge’s own nagging doubts about an unsavory state witness or the unlikeliness of the prosecutor’s theory about motive may not lead to setting the verdict aside. In Alex’s case, this meant that even though Judge Nelligan personally regarded the meaning of Alex’s exchanges with Marquez as “impossible to determine,” he was not empowered to overturn the jury’s verdict; the best he could do was refuse to impose a death sentence and give Alex eighty years. When my colleagues, Matt Tanner and Leslie Suson, and I appeared before the Illinois Appellate Court and I argued Alex’s appeal, I found the judges similarly skeptical of the same evidence, and I believe their observations from the bench ultimately led the prosecutors to decide not to re-prosecute. But even though the court reversed the judgment, given the deference to a jury’s findings, the justices, like Judge Nelligan, could not say that the verdict was completely irrational, which is what the law requires for an outright acquittal on appeal.

  Aside from reviewing a verdict once to ensure it’s within the broad borders of rationality, the courts by rule are precluded from ever dealing much with the facts of a case again. Although many Americans complain about the parade of years that goes into death penalty litigation, the proceedings after trial never again directly involve the question of whether the defendant is actually guilty. Instead, they usually center on repeated assaults on the competence of the trial lawyers, because that, generally speaking, is the only avenue for attack that is open. But the appellate courts refuse to allow a defendant to, in the parlance, “retry his case.” Guilt is taken as a fact determined, even when a defendant has marshaled substantial new evidence that the jury never heard.

  Years before he was released, Anthony Porter’s lawyers had developed a good deal of proof that Alstory Simon, not Porter, had committed the murders for which Porter sat on death row. Five different times, the Illinois and federal courts refused even to grant Porter an evidentiary hearing, because of the supposed strength of the original trial evidence and because of various rules limiting those courts’ rights to reweigh it.

  There are reasons for the law’s reluctance to allow appellate courts to reconsider the evidence. It would reduce the traditional power of the jury, a citizen bulwark against abuses by the state, if appeals courts could just ignore a jury’s conclusions. Besides, appeals court judges haven’t seen the witnesses testify, haven’t had the opportunity to assess demeanor or to absorb the thousands of details that we take in when we encounter one another in person. And trials would be unending if defendants could keep coming up with one more scrap of information to establish their innocence after verdicts had been entered.

  Yet in the charged atmosphere of capital cases, which so tempt juries to allow emotion to guide their decisions, some limited means of verifying the jury’s findings ought to be in place, at least if we want to continue to impose the death penalty. And given the propensities of juries in these cases, when a condemned prisoner claims he has mustered new evidence of his innocence, courts must be more open to an unbiased evaluation of that proof.

  It goes without saying that even those who support capital punishment recoil at the prospect of executing the innocent. For most of us there is a special horror in this that is difficult even to fully articulate. It’s not as if imprisoning an innocent person for life is anything other than a horrific abuse of human r
ights; but an unwarranted execution is measurably worse. As the courts often succinctly put it, “Death is different.” Part of it is the fact that as long as a prisoner lives, there’s some hope he can establish his innocence. (In fact, four of the persons on America’s death rows at the time Furman saved them were ultimately exonerated.) More of our revulsion, I think, stems from the fact that executing the innocent stands justice on its head, making the law a force of barbarism rather than of civilization.

  Some of the bravest advocates of capital punishment have been willing to acknowledge that having a capital system will inevitably entail executing someone who is innocent. They argue that what we gain with the death penalty is worth the cost—and point to other social conventions, such as the use of the automobile or alcohol or childhood inoculations, which we tolerate despite knowing that innocent lives will be lost.

  But when it comes to an institution as idealized as justice, I doubt most Americans are comfortable with the trade. For the majority of us, the prospect of executing someone who is blameless casts a special pall over the death penalty. The fact that capital cases are uniquely prone to error calls either for safeguards we have yet to institutionalize—or even fully conceive of—or for renewed reflection about whether to proceed with capital punishment at all.

  7

  BAD FAITH

  SHOULD A DEMOCRATIC STATE ever be permitted to kill its citizens? The question may sound like PoliSci 101, but it has an essential place in discussion of the death penalty. If the people are the ultimate source of authority in a democracy, should the government be allowed to eliminate its citizens, who are supposed to be a superior power? As a lawyer who tended to see the death penalty debate in the constitutional terms in which it has been presented—as an unduly cruel punishment, or a maddeningly arbitrary one—I had attended less to the relevant issues of political theory until I visited the American Academy in Berlin in 2000 and discussed capital punishment in the United States. After my address, a law professor, perhaps as old as ninety, rose with obvious difficulty and said, “Here, vee could neffer efen consider again allowing zee state to kill.”