Ultimate Punishment Read online

  His implicit reference to Germany’s Nazi past contained not only a sobering reminder of the lessons of history but a powerful and elegant argument. If the government is never permitted to end the life of its citizens, then any such killing would mark an outlaw regime.

  I am one of those who tend to find Western European criticisms of capital punishment somewhat misplaced, because Europeans generally overlook how different their circumstances are from ours. The murder rate in the United States is about four times that in the European Union. It is probably not fair that Europeans judge us without living in a society as divided as ours, as fractious and dangerous, a society where the fear, grief, and outrage that murder inspires are far more prevalent.

  As important, the American and European pasts offer different omens. Despite Western Europeans’ frequent self-congratulation on their civility, it is, in fact, their democracies that have repeatedly been overwhelmed by dictators. Franco. Mussolini. Salazar. Hitler. Pétain. Where democracy has proven fragile, the day seems far less remote when another madman can commandeer the power of the state to kill his enemies. In the U.S., we have, in the last five years alone, endured impeachment of our President, a controverted election of his successor, and a devastating attack on American soil by a foreign force. Despite these disruptions, we have never once seen troops in our streets to restrain citizens. I have always felt that it tempts fate too much to say, as Sinclair Lewis would have it, “It can’t happen here,” but we must bear in mind that American opinion about capital punishment is subtly dependent on the extraordinary stability of our democratic institutions.

  This doesn’t mean, however, that the problem of bad faith by governmental officials has no place in discussion of the death penalty. In Illinois, we have 102 elected State’s Attorneys, each with the power of life and death in his or her hands while confronting a frightened electorate demanding quick justice, as the public inevitably does in the face of ghastly murders. It is not simple posturing to say that most prosecutors withstand these pressures with professionalism. But even if only a few in a hundred proceed with a blind eye to the facts or the law, the results are unacceptable.

  To sidestep the powerful evidence of Brian Dugan’s guilt, the state, in Alex Hernandez’s second trial, tried to suggest that Alex could have been there with Dugan, notwithstanding the lack of any evidence the men so much as knew each other (or any explanation why one of them wouldn’t have named the other to save his life). Nonetheless, to prove there was more than one intruder at the Nicarico home, the prosecutors emphasized two different shoeprints that had been found behind the house, near a window where would-be burglars, supposedly including Alex, could have looked inside. The shoeprints were mentioned in the prosecutor’s opening statement, and nine prosecution witnesses were questioned about them, attempting to establish that the prints were connected to Jeanine’s disappearance. One of the witnesses testified that Alex, who stands five foot three, admitted to the grand jury that he wore size-seven shoes. Then a shoeprint expert testified that the prints in question were “about a size six.”

  On cross-examination, the defense lawyer, Mike Metnick, probing this testimony, eventually asked:

  Q: And when you say six, are you referring to a male’s size six?

  A: That would be a female’s size six.

  Indeed, not only had the expert employed the far smaller woman’s size in his testimony about the shoe prints but it also turned out that the tread pattern on one print had been identified as made by a shoe manufactured for women. The expert had known this for a week and had told the prosecutor, Robert Kilander, the First Assistant State’s Attorney, before getting on the stand. Kilander never informed the defense lawyers that the print came from a woman’s shoe, and simply offered the expert’s testimony against Alex Hernandez, a male—and a man on trial for his life.

  When Metnick, Urdangen, and Raley moved for a mistrial, Kilander claimed, “I had no knowledge there was any difference between a female and male size six shoe.” That still didn’t go to explain why he withheld the fact that one print could be proven to be from a woman’s shoe. He answered that in a separate hearing several months later. “It slipped my mind,” Kilander said.

  Defense lawyers lob empty accusations of misconduct at prosecutors and cops all the time. But in the Nicarico prosecutions, judges agreed. The first joint trial of Hernandez and Cruz was reversed by the Illinois Supreme Court because of what it labeled “a deliberate and constitutionally unacceptable attempt by the prosecution” to convict each man with evidence inadmissible against him. Despite that, the improperly motivated injection of more inadmissible proof was one of the grounds for reversal when the Illinois Supreme Court set aside Cruz’s second conviction. In that opinion and in the first Hernandez reversal, the Supreme Court also commented on two instances in which DuPage had allowed jailhouse witnesses to testify they had no deal with the prosecutors; the Court noted that on each occasion the trial prosecutors in fact had spoken up for each man when he was sentenced.

  In 1995, following the second reversal of Cruz’s conviction and death sentence, he chose to be tried by a judge alone, since Rolando’s lawyers had come to accept that a jury would never see this case for what it was. However, the third Cruz trial came to an abrupt end when a police officer, who’d earlier corroborated two colleagues’ account of Cruz’s “vision statement,” now returned to court to acknowledge that his prior testimony was false. The officer said he’d discovered he’d actually been in Florida at the time the other cops had supposedly recounted the vision statement to him.

  Judge Ronald Mehling acquitted Rolando, and a few months later the case against Alex was dismissed. In the ensuring uproar, a special grand jury was convened, resulting in the indictment of seven men—three former prosecutors and four members of the DuPage County Sheriff’s police—on various charges, including conspiring to obstruct justice in the Cruz case. They were tried and, as is often the case when law enforcement officers are charged with overzealous execution of their duties, acquitted, although the county subsequently reached a multimillion-dollar settlement in civil suits brought by Hernandez, Cruz, and their one-time co-defendant, Stephen Buckley.

  Accepting that jury’s verdict that none of the seven men acted with criminal intent, I still marvel how little chastening there has been in DuPage County. Joe Birkett, Jim Ryan’s eventual successor as State’s Attorney, celebrated at the victory party for his indicted colleagues the night of their acquittal. He recently admitted that DNA establishes Dugan’s role with “scientific certainty,” but still refuses to acknowledge Cruz and Hernandez’s innocence.

  On the other hand, the judges in the criminal division attempted to strip Ronald Mehling of his position as Presiding Judge, after he acquitted Cruz. While that effort failed in the face of a public outcry, Mehling decided to resign in 2002. When he did, he had to pay for his own retirement party. In the meantime, Robert Kilander, the prosecutor who tried to send Alex Hernandez to death with the print from a woman’s shoe and who was subsequently indicted for conspiring to obstruct justice in the Cruz case, has taken the bench and is now the Chief Judge of DuPage County.

  8

  THE VICTIMS

  IF THESE ARE THE PERILS, why have a death penalty? What do we get out of it?

  One group that consistently supports executions is the surviving loved ones of murder victims. As an AUSA, I’d handled only one shooting case. Clearly, I didn’t know enough about how the world looks to the victims of violence. As a result, a number of my colleagues and I urged the Commission to hear from the murdered person’s survivors, who are commonly referred to as “the victims.” In murder cases, alone among crimes, the anguish and loss of loved ones stands in for what was experienced by the actual victims, who can no longer speak for themselves.

  In order to sample public opinion about the capital punishment system, the Commission held open hearings in both Chicago and Springfield, the state capital. The roster of speakers was dominated by dea
th penalty opponents, many of them associated with religious groups. (One organization whose position I hadn’t anticipated was the Illinois Medical Society, which objects to state laws allowing physicians to assist in executions, in violation of the Hippocratic oath.) Understandably, survivors were not eager to turn their hearts inside out in that kind of forum, and as a result we scheduled private sessions where they felt freer to speak.

  I learned a great deal in those hours. What made the deepest impression on me was my eventual recognition that losing a loved one to a murder is unlike any other blow delivered in our often-cruel lives. This is because the survivor’s loss is not the result of something as fickle and unfathomable as disease, or as random as a typhoon. Instead, he has had someone ripped from him by the conscious choice of another human being. This is so far from the ingrained assumptions we share in living together that the reality is almost impossible to accommodate. And the unique nature of this loss is a special challenge to the regime of reason and rules that is the law because it exists, first and foremost, to encourage and enforce minimum standards of civilized behavior. Even before the law’s technicalities, its unfamiliar language, privileges, and procedures, and its decade-long delays from trial to execution—even before all of that starts, the law, by its own terms, has failed these people.

  This recognition was a long time coming to our legal system. Crime, as we conceive of it, is committed against the community as a whole, and thus matters of policy, including punishment, depend on community judgments. The U.S. Supreme Court had ruled as late as 1987, in Booth v. Maryland, that it was unconstitutional in a capital sentencing proceeding to admit a statement of the impact of the crime on the survivors. Such evidence was inflammatory and irrelevant, the Court said, since sentencing should look solely to the character of the defendant and his crime, not to the tears of the bereaved.

  By the end of the 1980s, the so-called victims’ rights movement had gained ascendance nationwide, and the Court, as has so often been the case on questions of capital punishment, reversed itself in 1991. Now, in most states, victims have a statutory right, as they do in Illinois, to be heard by the sentencing tribunal.

  Do survivors want the killer to die? Not universally. But more often than not, they do. And what is it they hope to gain by seeing a murderer put to death? Obviously, answers to this question are highly individual, but in speaking to victims, certain themes emerged.

  Dora Larson has been a victim advocate for nearly twenty years, helping the surviving family members deal with both the tribulations of violent crime and the way the legal system addresses it. She herself is a survivor.

  “[M]y 10 year-old daughter, Victoria Joell Larson—-or Vicki—was kidnapped, raped, and strangled and put into a grave her 15 year-old killer had dug three days before,” she told us when she testified before the Commission on December 13, 1999. Given her professional and personal experience, Mrs. Larson was in a unique position to describe what survivors want.

  [W]e survivors, our biggest fear is that some day, our child or loved one’s killer will be released. And we know we never, ever get our loved one back. But we want these people off the streets so that others might be safe. To many of us, justice means we never have to worry that our killer will ever kill again…

  Clearly, it would render a loved one’s death even more meaningless if the crime was repeated. This concern presumably can be met by a life term. Yet Mrs. Larson noted several ways in which life sentences pose a far greater emotional burden than an execution. Because Vicki Larson’s killer was under eighteen, he was not eligible for the death penalty.

  When I was told life, I thought it was life. Then I get a letter from the Governor that our killer has petitioned the Governor for release. And do you know, I have testified before…[b]ut going before that Prisoner Review Board to beg them to keep him behind bars was the toughest thing I have ever done since Vicki’s funeral.

  Even if we guarantee that life sentences will include no possibility of parole, anxieties remain for survivors. Another woman who appeared before us, Laura Tucker, pointed out that the man who’d savagely beaten and murdered her nine-day-old niece, the baby’s father, had made two escape attempts while awaiting his death sentence. With his history of vicious child abuse, she contended that no child in the state would be safe were he again at large.

  Survivors’ concerns are also accelerated by the dynamism of the legal process: laws change. In Dora Larson’s case, the U.S. Supreme Court’s decision in Apprendi v. New Jersey, creating new constitutional requirements that must be met before imposing so-called enhanced sentences—sentences that, in particularly aggravated cases, can be extended beyond the statutory maximum—has left her worrying that her daughters killer’s life term might now be unlawful. If so, his sentence could be shortened to sixty years, which would put him back on the street at the age of forty-five.

  Mrs. Larson is right. As long as a killer is alive, he’s likely to keep throwing paper. From a penitentiary cell, there’s not much to lose. And eventually the law may come to his aid. The reality, though, is that a death sentence is probably more illusory than a life term. As I noted, even before Governor Ryan’s moratorium, more than a third of the time a condemned prisoner in Illinois eventually escaped death row; and less than half of one percent had actually been executed, which is consistent with national averages. Moreover, no jurisprudence is more unstable than that governing capital sentencing. Until June 2002, the mentally retarded could be sentenced to death. Now it’s unconstitutional, with no telling how many sentences across the country will be overturned as a result.

  But the fact that survivors never stop hearing about the killer while he’s alive motivates victim families to talk again and again about “closure,” an end to the legal process that will allow them to come to final terms with their grief. Only an execution, they maintain, will provide that irreversible conclusion.

  On the Commission, a number of us tried, without success, to determine whether the hope of closure is satisfied in reality. I have not found any long-range studies of survivors which attempted to assess their emotional state in the years following an execution. As Mrs. Larson said, “[S]urviving families are sentenced to a life of pain, unanswered questions, what-ifs, and trips to the grave.” These remain whether the killer lives or dies. Jay Stratton, who lost his mother in the Oklahoma City bombing, watched the execution of the principal perpetrator, Timothy McVeigh. Stratton reportedly said, “I thought I would feel satisfied, but I don’t.” Some scholars maintain that survivors only experience more emotional turbulence in the wake of an execution.

  Yet Mrs. Larson and many others assert that large numbers of survivors find the execution of their lost loved one’s killer a meaningful emotional landmark. Because McVeigh had killed more than 160 people, his execution provided a broad sample of survivor opinion, and many of those who witnessed it, either in person or through a closed-circuit feed to Oklahoma City, told reporters in the immediate aftermath that they had experienced a sense of relief. There are enough such anecdotal accounts that I, for one, am unwilling to dismiss them, particularly because execution brings a definitive end point to what seems to be the most enduring grievance of many survivors.

  As Dora Larson put it:

  My Vicki will be 10 forever. On February 8, 2001 would be her 32nd birthday. And I am going to take a little 10 year-old Winnie the Pooh arrangement out, because she’ll be 10 forever…[T]he victims will never see another birthday…[T]he inmate on condemned row has the freedom of choice. The victim had none.

  The fact that a life-incarcerated killer still has birthdays, Christmases, sees the sun rise and set, can look through the visiting room panel and hear his mother say she loves him and can repeat those words to her, is the ultimate indignity to many victim families. Some critics may label the survivors’ desire for death “retribution,” or even “revenge,” but that’s subtly off the mark. From what I heard, they do not await the murderer’s execution simply to establish a g
ruesome tit-for-tat, in which the horror of being killed is revisited on a killer, or out of the logic of the sacrificial altar, where witnessing someone else’s anguish will expiate their own pain. The justice they seek is the same kind embedded in the concept of restitution: the criminal ought not end up better off than his victim. To survivors it is unconscionable and infuriating that after all the misery the murderer has wrought, he still experiences many of the small joys of existence, and thus in some measure his life and his family’s is better than the victim’s and theirs.

  “Yet even if a survivor’s desire for a killer’s death reflects broadly held views of what is just, the actual implementation of those wishes may not be fair. For example, emphasizing the preferences of victims has exaggerated many of the inherent inequities of our capital justice system, often enhancing the randomness of who gets sentenced to death and who does not. The murders of Melissa Ackerman and Jeanine Nicarico were virtually identical crimes, yet Brian Dugan received life imprisonment for the murder of Melissa Ackerman, because the Ackerman family was willing to accept the sure, quick resolution offered by a guilty plea, while the Nicaricos have demanded death for their daughter’s killer. It violates the fundamental notion that like crimes be punished alike to allow life or death to hinge on the emotional needs of the survivors.