Ultimate Punishment Read online

  From the start I had only one question: How did a parking lot stickup gone bad end up as a capital case? The six other cases from Lake County, where the crime occurred, that had led to a death penalty were far more aggravated. Hector Reuben Sanchez was one. Alton Coleman, a notorious serial murderer, was another. There was also a double murder; a case where the defendant poisoned his parents and his grandmother-in-law; a murder where the defendant first raped the victim, then shot her five times after she reported the crime; and the murder of a sixty-three-year-old woman in which the defendant beat her with a pipe filled with concrete and then stabbed her through the heart. How did this awful but nonetheless more pedestrian killing bring Thomas to the same fate as John Wayne Gacy?

  It was never completely clear to me why the Lake County State’s Attorney’s Office had pressed forward with this as a capital case. To be sure, Chris had a record going back to his days as a juvenile, but the incidents were more in the nature of threatened rather than actual violence—he’d just finished a stretch for discharging a firearm in public, for example. The prosecutors called Chris’s crime an execution-style shooting, because the gun had been pressed close to Mr. Gasgonia’s forehead, but there was no question that robbery, rather than murder, had been the plan. Perhaps the biggest factors in making the case a capital prosecution were that the state had a lot of evidence—Chris’s confession, his accomplices’ words, and several persons to whom Chris had admitted the murder—and Chris had nothing to give them. From conversations afterwards, it appeared to me that the State’s Attorney’s Office had figured they’d plead the case out eventually for a lesser sentence.

  Be that as it may, the salient point is that the death penalty statute gave prosecutors the latitude to charge this “typical” murder as a capital offense. In Illinois, when our death penalty statute was passed in 1977, it listed seven factual circumstances under which a murderer would be eligible for capital punishment—killing a police officer or firefighter; killing a correctional officer or inmate; murdering more than one person; murder in the course of an air hijacking; murder of a witness; contract murder; and felony-murder, referring to an intentional murder committed by the defendant in the course of nine different forcible felonies, such as rape or armed robbery. Today there are twenty-one different ways to qualify for capital punishment in Illinois. Basically, whenever public anxieties have mounted, because of either a prominent murder or an enduring problem like gang warfare, the Illinois legislature, eager to respond to the electorate’s safety concerns, has added to the list of factual circumstances under which a killer may die. Thus when Arnold Mireles, a community policing volunteer in Chicago, was killed in 1998 because of his confrontation with local landlords, the legislature made the murder of a community policing volunteer a capital offense.

  Moreover, one of the original eligibility factors, felony-murder, has ballooned as well. Prosecutors love felony-murder eligibility. For one thing, it provides an avenue to a capital sentence for a violent criminal with a long record whose crime might not otherwise qualify. It allows prosecutors to sentence defendants, rather than offenses. Beyond that, felony-murder is often easier to prove than other qualification factors. The evidence that a defendant was committing an armed robbery is far more clear-cut than whether he was attempting to torture his victim with a pistol-whipping. Thus, a full 60 percent of the prisoners on Illinois’ death row had arrived there thanks to felony-murder eligibility, albeit often in the company of more particular criteria.

  Yet felony-murder always struck me as a logical mess. Why should a murder in the course of a rape be death-eligible, if the same defendant could rape a woman one day and murder her for laughs the next without facing death? Does timing really make the crime any graver? More important, felony-murder by its nature aims at crimes that started out with another purpose. Aren’t long-contemplated murders more aggravated than murders committed on impulse, like Thomas’s?

  These thoughts had not stopped the Illinois legislature, which had continued adding forcible crimes to the list of felony-murders punishable by death until they numbered sixteen. This statutory breadth vests prosecutors with great discretion about whether to seek the death penalty, and experience seems to teach that uncabined discretion, exercised by 102 different State’s Attorneys, will inevitably lead to unfair results.

  Chris Thomas was on death row, therefore, because of questionable legislative judgments. But in the legal system, like the rest of life, there is usually more than one reason something goes awry. Thomas, as is true of many others, was also on death row for the crime of having the wrong lawyers. He had been defended by two local private attorneys who had entered into a contract with the Lake County Public Defender’s Office that paid them $30,000 per year to defend 103 cases, an average of less than $300 per matter. By contract, one assignment had to be a capital case. Ordinarily, a Deputy Public Defender experienced in capital defense was assigned with the contract lawyer, but the fiscal year was nearly over, and neither of the contract attorneys had done the required capital case, so they were assigned to the matter together. One of them had never had any role in a death penalty case; the other had only been standby counsel when Alton Coleman, already under the Ohio death sentence that led to his execution in 2002, had defended himself.

  As I worked with Brett Hart and another of my partners, John Koski, our strategy was to characterize Thomas’s defense in court as all you would expect for $600. In light of Chris’s confessions, his trial lawyers had seemed to regard the case as a clear loser at trial and, given the impulsive nature of the murder, virtually certain to result in a sentence other than death. They did a spare investigation of Thomas’s background for the inevitable sentencing hearing, an effort that was also hindered by the fact that the chief mitigation witness, Thomas’s aunt, the closest thing to an enduring parental figure in his life, had herself been prosecuted on a drug charge by one of Chris’s lawyers during his years as an Assistant State’s Attorney. Chris’s aunt distrusted her nephew’s attorneys, and under her influence, Thomas soon did as well. He felt screwed around already, since he’d confessed to the crime, expressed remorse, and was rewarded for his contrition by being put on trial for his life. By the time of trial, Thomas was at war with his lawyers. He refused to discuss a guilty plea, and after he was convicted, he took the stand in his sentencing hearing to deny he committed the crime, notwithstanding his many prior confessions. Infuriated, Judge Charles Scott, who’d never sentenced anybody to death before, gave Christopher Thomas the death penalty. So the dominoes fell.

  Since the time Chris’s case was tried in 1995, the Illinois Supreme Court and the state legislature have taken several steps aimed at guaranteeing a competent defense in a death penalty trial. A Capital Litigation Trust Fund has been established to pay lawyers and experts, and the Illinois Supreme Court has created a Capital Litigation bar, with specific experiential requirements that both prosecutors and defenders must meet before they may try a death case.

  Yet those changes do nothing to address the more fundamental problem of how prosecutors choose when to seek the death penalty. Looking over the roughly 270 reported opinions in Illinois capital cases, I was struck again and again by how random it all seemed: there were many monstrous crimes, but also a number of so-called garden-variety murders.

  When the U.S. Supreme Court declared the death penalty unconstitutional in 1972 in Furman, the prevailing reason among the majority was because there was virtually no logic to who was being selected for execution and who wasn’t. Legislatures and courts have spent the quarter century since capital punishment was restored attempting to establish more exacting guidelines and procedures, but the results are still wildly inconsistent. When Alstory Simon pled guilty to the double murder for which Anthony Porter was once nearly executed, Simon was sentenced to thirty-seven years. Chris Thomas was on death row, but other Lake County murderers whose crimes seemed far graver had escaped it, including one man who’d killed four persons; another who’d knock
ed his friend unconscious, then placed him on the tracks in front of an oncoming train; and a mother who’d fed acid to her baby. Where’s the moral proportion in that?

  Nor are the inequities that emerge in case-to-case comparisons the only troubling disparities in the application of the death penalty. Race, whose effect in capital cases is often misunderstood, provides an example of continued differential treatment. We commissioned Mike Radelet and Glenn Pierce, two leading death penalty researchers, to determine if there was any evidence that race played a part in who had been sentenced to death in Illinois since 1977. There was indeed a race effect, it turned out, but not what popular beliefs might suggest. In Illinois, according to the available records, roughly 70 percent of the persons convicted and sentenced for first-degree murder have been black (as have been more than 60 percent of the victims) and about 17 percent of the killers have been white (and about 25 percent of the victims). Once convicted, however, white murderers were sentenced to death at a rate two and one half times that for black murderers. The reason? One seems to be that the death penalty is given more frequently in the largely white, rural parts of the state. Also, in a racially divided society, whites are more likely to associate with, and thus to murder, someone white, and that—choosing a white victim—turns out to be the controlling variable. Killing a white person made a murderer three and a half times more likely to be punished with a death sentence than if he’d killed someone black.

  The figures showing that death sentences are meted out far more often for murdering whites than for murdering blacks may be mitigated by various factors. Juries tend to engage in an unspoken calculation of the harm of a murder. No one would be surprised to see otherwise identical murders result in the death penalty when the victim was a beloved schoolteacher who was the mother of three young children, and a lesser sentence if the person killed was a crack-addicted drug dealer. On the face of it, race plays no part in these judgments, but because wealth, power, and status in the United States are still so unevenly distributed along racial lines, there would inevitably be a race effect, even if we were all color-blind. Furthermore, it is also fair to note that in a city like Chicago about half of murders are gang-related. Race is obviously part of the picture when we talk about gangs, but it is also significant in deciding whether capital punishment is appropriate in a given case that the victim, in messing with gangs, voluntarily placed himself in harm’s way.

  These factors palliate the systemic disparity, but do not seem to fully explain it. The numbers still demonstrate that race and the death penalty are linked, and suggest that the many decision-makers in the capital system—cops, prosecutors, and juries—may value white lives more highly than black ones. When the capital sentencing system places the murder of a white in the gravest classes of offenses 350 percent more often than it does the killing of a black, we are exposing potent issues, especially whether we are really punishing like crimes alike.

  Examination of other variables tends to reinforce the impression that we are not. Geography, as I mentioned, also matters in Illinois. You are five times more likely to get a death sentence for first-degree murder in a rural area than would be the case in Cook County, which includes Chicago. Gender seems to count, too. Capital punishment for slaying a woman has been imposed at three and a half times the rate for murdering a man, while women are sentenced to death only 60 percent as frequently. The fact that variables like the race and gender of the victim and the location of the murder all impact on who gets the death penalty tends to call into question the notion that capital punishment vindicates a uniform or broadly shared morality, as opposed to a network of less admirable prejudices and preconceptions.

  And variations related to race, locale, and gender do not take any account of the highly individualized factors that can influence the judgment of those who make the death penalty decision. The justices of the U.S. Supreme Court have debated whether the constitutional demand for consistent and reasoned imposition of capital punishment can ever be reconciled with the competing requirement that individual cases must be decided on their own peculiar facts. But the elements at play are not always limited to what aggravates or mitigates a particular matter. In one death row case with which I became familiar, defense lawyers insisted that the trial prosecutor elected capital punishment because he was leaving the State’s Attorney’s Office and had never tried a death penalty case. There was some circumstantial corroboration for the claim, but even if the desire for experience had only an unconscious role in the prosecutor’s decision-making, it serves to emphasize how haphazard the determinative elements can be in who lives and who dies.

  There are also paradoxical effects in the way sentences ultimately get carried out. Cases are sifted by the justice apparatus at widely varying rates. The tiny percentage of death row inmates who have actually been executed have been selected for that fate based on largely adventitious factors including the art of the lawyers who’ve represented them in post-conviction proceedings, the backlog in particular judicial systems, and the demonstrated ineffectiveness of their original lawyers. The worse the job done by the trial lawyers, both prosecutors and defense counsel, the longer condemned prisoners live, no matter how grave their crime or potent the evidence.

  Standing back from it all, I found it hard to discern the guiding hand of reason. Adding these factors together—race, gender, geography, who the lawyers and jurors are, and the sheer serendipity of circumstances—one sees anything but the kind of bright-line proportionate morality the death penalty is intended to symbolize.

  11

  REDEMPTION

  THE DENOUEMENT for Chris Thomas offered lessons of its own. The matter was only in the middle innings of death penalty litigation when my partners and I started on it. Thomas had been tried, and the Capital Litigation Division of the Illinois State Appellate Defender’s Office had filed an appeal for him. We began preparing the papers for the next stage, even before that appeal was resolved. The Illinois Supreme Court ruled against Chris in September 1997, and the U.S. Supreme Court denied further review the following June. In September 1998, we filed a post-conviction petition in the Circuit Court in Lake County. Basically, we cited new evidence, not considered at the trial, arguing that Chris’s lawyers should have found that material, and that their oversights prejudiced Chris’s case. (As I noted earlier, attacking the competence of prior counsel is, functionally, the only avenue that is open. All other issues are usually unreviewable on the theory that they should have been raised before.)

  If our post-conviction petition was dismissed, or if we lost at a hearing, there would be another appeal to the Illinois Supreme Court, and, if unsuccessful, then another request to the U.S. Supreme Court for review. If all of that failed, then the post-conviction process would begin anew in federal court, with a petition for a writ of habeas corpus. New lawyers might well enter the case at that point, obliged to argue that I had fallen down on the job. If they lost at the trial level, they would have a federal appeal, and at least two different kinds of requests for review to the U.S. Supreme Court to look forward to, and even an attempt at a second habeas petition.

  This procedural rundown demonstrates why many say that death penalty litigation is today’s version of Jarndyce v. Jarndyce, unfathomably complex and unbearably protracted. Yet Chris’s case offers an object lesson in why the law has developed this way. In October 1999, Judge Barbara Gilleran Johnson of the Lake County Circuit Court ruled on our petition, finding that Chris’s rights were violated when the prosecutors introduced the results of a number of court-ordered psychiatric examinations against Chris in his sentencing hearing, essentially making Chris a forced witness against himself in violation of the Fifth Amendment and clear U.S. Supreme Court precedent. The judge determined that this error may have led to Chris’s death sentence.

  There was nothing fanciful about this ruling. The law was unambiguous, and the state did not even bother to appeal it. The fact was that the trial judge, the trial prosecutors, and Chris’
s trial and appellate lawyers had all glossed over a fairly obvious error. Worst of all, the Illinois Supreme Court had resolved Chris’s appeal by finding that Chris had tried to exploit that psychiatric testimony, which was flatly untrue, as both the State’s Attorney’s Office eventually conceded and Judge Gilleran Johnson found.

  None of the persons who’d made these mistakes had acted in bad faith. The body of law governing the death penalty has grown so complex that it challenges the abilities even of experts. The reason there is always further review is because there has to be, although over the years, I’ve sensed that the inevitability of additional scrutiny has a natural tendency to occasionally make judges and lawyers less scrupulous than the stakes would seem to require.

  Reversal of Chris’s death sentence was, of course, only a prelude to another death penalty hearing. My experiences in Thomas’s case were antipodal to those in Hernandez’s, not only because the client was guilty, but because I admired the way the prosecutors did their jobs. Mike Waller, the elected State’s Attorney of Lake County (and later my colleague on the Commission), and Michael Mermel, the Chief of Felonies, defended the conviction and sentence ardently in court, but privately they maintained a willingness to hear out me and Dave Brodsky, the Lake County Public Defender, who often worked with us on the case. Notwithstanding the sharp disagreements I frequently had with the prosecutors, they approached both the law and the facts with integrity. Waller never shirked responsibility or apologized for his office’s initial decisions about Chris, but he also freely acknowledged that much of the new information we brought him made the case look considerably different than it had originally.