Ultimate Punishment

by Scott Turow

  can get life…for…swiping a few videos: The U.S. Supreme Court allowed to stand the sentence of fifty years to life imposed on Leandro Andrade for stealing videotapes worth a total of $153.54 from two Kmarts. Lockyer v. Andrade, _-US - (No. 01–1127, decided 3/5/03).

  along with many others: Memoir, by its nature, is a self-centered form. But I hope my account is clear that Alex’s freedom is due to the work of many whose names have otherwise gone unmentioned. At Sonnenschein, we invested thousands of hours in this probono case, many of them given by Matt Tanner and Leslie Suson, two fine lawyers, and by two heroic paralegals, Mary Kramer and Lynette Johnson. When the appeal was concluded, I inveigled Dan Webb, my former boss as U.S. Attorney and perhaps America’s most eminent trial lawyer, into agreeing to represent Alex if he was retried. Webb’s shadow—and that of Dane Drobny and David Korupp, who worked with Dan at the firm of Winston and Strawn—was undoubtedly another factor in the prosecutor’s decision to ultimately drop the case, as was the acquittal of Rolando Cruz obtained by Tom Breen, Matt Kennelly, Nan Nolan, and the ubiquitous Larry Marshall.

  “Why has the state not confessed error”: See Victims, pp. 261–62, for the authors’ account of the Hernandez oral argument.

  night of October 25, 1994: Chris Thomas’s case was affirmed on appeal, People v. Thomas, 178 Ill. 2d 215, 687 N.E.2d 892 (1997). The required version of the facts, from the state’s point of view, appears in the opening pages of the opinion. 178 Ill. 2d at 222–29. Further review of the case was denied by the U.S. Supreme Court, 524 U.S. 955 (1998).

  Alton Coleman: For a description of Alton Coleman’s crime spree, see J. Greenberg and B. Glauber, “Virginia Charges Two Sniper Suspects,” Chicago Tribune [North Sports Final Edition], 11/7/02, Section N, p. 8, including quotations from my friend Jeremy Margolis about the case.

  awful, but nonetheless more pedestrian killing: The cases we regarded as more aggravated than Chris’s to which I refer are Sanchez’s, described in the opening pages here; People v. Coleman, 168 Ill. 2d 509, 660 N.E.2d 919 (1995), regarding the serial murderer; People v. McNeal, 175 Ill. 2d 335, 677 N.E.2d 841 (1997), the double murder; People v. Enis, 163 Ill. 2d 367, 645 N.E.2d 856 (1994), where the defendant killed his rape victim after she brought charges; People v. Neal, 111 Ill. 2d 180, 489 N.E.2d 845 (1985), the beating and stabbing; and People v. Albanese, 104 Ill. 2d 504, 473 N.E.2d 1246 (1984), where the defendant killed many family members with arsenic and has since been executed.

  death penalty statute…in 1977: See Report, pp. 3–4, for the history of the Illinois Death Penalty statute.

  murder of a community policing volunteer a capital offense: “New Law Aimed at Protecting Community Policing,” Chicago Tribune [North Sports Final Edition], 7/29/98, p. 3; 720 ILCS 5/9-1 (b)(18).

  on Illinois’ death row…thanks to felony-murder: See Report, pp. 67–75 and p. 78n.14, and Technical Appendix Section 2C, for a thorough analysis of the eligibility factors utilized in Illinois’ death row cases.

  contract with the Lake County Public Defender’s Office: The Amended Post Conviction Petition we filed for Chris Thomas, with its references to the record assembled, is on line at http://www.scottturow.com/ultimatepunishment [hereafter “Petition”]. Petition at pp. 15–17 describes Chris’s lawyers’ contract; p. 56, their experience in capital cases.

  trial lawyers…seemed to regard the case as a clear loser: See Petition, pp. 56–58, regarding the expectations and activities of Chris’s lawyers.

  Thomas’s aunt…had…been prosecuted…by one of Chris’s lawyers: Petition, pp. 8–13, 57–58, describes dealings between Chris’s aunt and the lawyers. In the Petition, we argued that Chris had the wrong lawyers in the eyes of the law and that one or both should have been disqualified because of the prior adverse relationship with a critical defense witness.

  aunt distrusted…attorneys: One of Chris’s lawyers admitted that the aunt called the lawyer “the devil.” See Petition, p. 11.

  Illinois Supreme Court has created a Capital Litigation bar: The Capital Litigation Trust Fund Act is 725 ILCS 124/15 (eff. 1/1/00). Ill. Sup. Ct. Rule 416 sets forth the new requirements for attorneys appearing in capital cases.

  Alstory Simon…sentenced to thirty-seven years: Alstory Simon pled guilty in September 1999, but now that he’s doing his thirty-seven-year sentence, Simon has claimed that his confession to Porter’s investigators was somehow coerced. J. Coen, “Confessed Killer Recants His Story,” Chicago Tribune [Lake Final Edition], 12/14/02, p. 1. Porter’s lawyers have called the claims “ridiculous,” but it serves as a case in point for those who wonder why prosecutors generally give the back of their hands to post-hoc claims of innocence. They are routine—and routinely unavailing.

  other…murderers…crimes seemed…graver: The other murders that did not result in a death penalty are People v. Edwards, 301 Ill. App. 3d 966, 704 N.E.2d 982 (2d Dist. 1998) (four murders); People v. Matney, 293 Ill. App. 3d 139, 686 N.E.2d 1239 (2d Dist. 1997) (friend on train tracks); and People v. Smith, 241 Ill. App. 3d 446, 608 N.E.2d 1259 (2d Dist. 1993) (mother fed acid to baby). A number of other offenses that we regarded as far worse than Chris’s are described at pp. 29–30 of our Answer to the State’s Motion to Dismiss Thomas’s Post-Conviction Petition, posted on line at http://www.scottturow.com/ultimatepunishment.

  commissioned Mike Radelet and Glenn Pierce: The Pierce and Radelet study is part of the Commission Report. See Report, Technical Appendix, Section 1, “Race, Region and Death Sentencing in Illinois 1988–1997,” 3/20/02.

  race effect: Section 1, p. 56 (Table 29, Race of Offender). Table 27, p. 55, shows that more than 60 percent of first-degree homicide victims are black and nearly 25 percent are white. According to the 2000 census, 15.6 percent of Illinoisans were black, 75.1 percent white. Section 1, p. 2. In 1987, the U.S. Supreme Court decided McCleskey v. Kemp, 481 U.S. 279 (1987), a 5–4 decision that found proven systemic race effects constitutionally insignificant in an individual case. Justice Powell, who wrote the opinion, later told his biographer it was the worst decision he made on the Court. Jeffries, Justice Lewis F. Powell, Jr.: A Biography (Scribner’s, 1994), p. 451. The statistical studies at issue in McCleskey showed that in Georgia in the eighties, as in Illinois today, whites charged with capital murder were sentenced to death more often than blacks. 481 U.S. at 286. This is not true in all states, however; see Section 1, Appendix I, pp. 27–33, for a summary of studies in other states. This suggests that the Illinois numbers may be influenced by geographical disparities, because there are higher rates of death sentencing in largely white areas of the state.

  white victim…controlling variable: Section 1, p. 55 (Table 27, Race of Victim). The same table shows the rate at which whites and blacks are condemned for murdering whites. It is also worth noting that the last time the issue was studied in Illinois in 1980, blacks were nearly three times more likely than whites to be death-sentenced for killing a white. See Section 1, pp. 6–8. These days, for statistical purposes the numbers are basically even, with whites given a capital sentence in this circumstance slightly more often. Other states, like Kentucky and Pennsylvania, still condemn black killers of whites more often. Section 1, pp. 29 and 31.

  calculation of the harm of a murder: Indeed, in Payne v, Tennessee, 501 U.S. 808 (1991), in which the Supreme Court reauthorized victim impact testimony, the Court recognized that juries may engage in these kinds of comparisons. The Court found that victim impact testimony did not encourage such comparative thinking, but recognized it might occur and appeared to say it is not constitutionally forbidden. Id. at 823. (“It is designed to show instead each victim’s ‘uniqueness as an individual human being,’ whatever the jury might think of the loss to the community resulting from his death might be.”)

  murders are gang-related: D. Heinzmann, “Chicago Falls Out of 1st in Murders,” Chicago Tribune [Final C edition], 1/1/03, p. 1, shows that Chicago has the nation’s highest murder rate, as it has had for eight of the last nine years, and that poli
ce attribute roughly half of Chicago murders to gangs and/or drugs. See also “Chicago, Big-City Murder Capital,” Chicago Tribune [North Sports Final edition], 1/16/03, Section 1, p. 18.

  Geography…matters in Illinois: Section 1, p. 18, discusses geographical data for Illinois.

  Capital punishment for slaying a woman: Gender-related statistics are discussed at Section 1, p. 18. Note that because of the small sample, the prevalence of death sentences for men compared to women is not statistically significant, according to the authors.

  justices…have debated: Justices Blackmun and Scalia, for example, went back and forth on the constitutional effect of individualized decision-making in Callins v. James, 510 U.S. 1141 (1994), the decision where Justice Blackmun issued his famous dissent containing his promise to tinker no further with the machinery of death.

  Court ruled against Chris: People v. Thomas, 178 Ill. 2d 215, 687, N.E.2d 892 (1997), cert, denied, 524 U.S. 955 (1998).

  unfathomably complex: Writers sometimes make mistakes, and I may make more than my share. Readers are good about correcting the errors they find. For example, many readers wrote to me about my novel Reversible Errors, discussed below, to point out that the murder weapon, a Smith and Wesson. 38 five-shot Chief’s Special, does not have a safety, as the first edition of the book had asserted. When an early version of part of this book appeared in The New Yorker, two lawyers, including the estimable Laurence Tribe of Harvard, wrote to question my discussion of the Supreme Court’s decision in Witherspoon v. Illinois. But although I’ve had much correspondence from death penalty experts about Reversible Errors, none of them has raised any question about the framework I posited for resolution of Rommy Gandolph’s last-ditch death penalty appeal, even though those procedures are entirely invented. (For the buffs: I imagined that on a second habeas corpus petition, the appellate court had ordered the district court to grant discovery on appealability.) That is because, frankly, the law is such a thicket in this area that I doubt anybody’s sure whether I’m right or wrong. Personally, I thought the hearings I imagined were possible under the law. But I found no precedent.

  Judge Barbara Gilleran Johnson…ruled: Judge Gilleran Johnson’s order [hereafter “Order”] is posted at http://www.scottturow.com/ultimatepunishment. See Order at 3–4. It came on the state’s motion to dismiss our Petition. Because the facts in the case were not disputed, her decision on the legal issues was effectively a ruling on the merits, and both parties had asserted as much to the Court when the case was argued.

  Illinois Supreme Court…finding…which was flatly untrue: See People v. Thomas, 178 Ill. 2d at 247, 687 N.E.2d at 906. See Order at 3.

  more extensive picture of Thomas’s background: Petition, pp. 60–67, sets forth the evidence we gathered about Chris’s background. The Order at 5 found that it would have been “better practice” for this information to have been presented at Chris’s sentencing, but did not reach the issue of whether it was ineffective assistance of counsel, in light of the prior ruling on misuse of Chris’s mental health records.

  “Yes, I would,” he answered: Chris was resentenced on December 15, 1999. He made the remarks quoted at pp. 30–32 of the transcript, which is posted at http://www.scottturow.com/ultimatepunishment.

  Coleman spent seventeen years…without…disciplinary write-up: The Dayton Daily News of 4/27/02 contained the quote about Coleman. The lawyer for Coleman to whom I refer is Dale Baich, Office of the Federal Public Defender, 222 North Central Avenue, Suite 810, Phoenix, Arizona 85004.

  “I-57 murderer”: Details of the I-57 killings and of Brisbon’s apprehension for the crime are set forth in People v. Brisbon, 89 Ill. App. 3d 513, 411 N.E.2d 956 (1st Dist. 1980).

  after the sentencing, Brisbon: Details of Brisbon’s second murder conviction and of his two sentencing hearings (the first was reversed) are set forth at People v. Brisbon, 106 Ill. 2d 342, 478 N.E.2d 402, 88 Ill. Dec. 8 (1985) (where the prosecutor’s remark about the relative length of Brisbon’s sentence is repeated), and People v. Brisbon, 129 Ill. 2d 200, 544 N.E.2d 297, 135 Ill. Dec. 801 (1989). Brisbon’s disciplinary record at the time of his death sentence is discussed in those opinions and People v. Brisbon, 164 Ill. 2d 236, 647 N.E.2d 935, 207 Ill. Dec. 442 (1995).

  continued to compile…disciplinary dossier: Information regarding Brisbon’s discipline since 1982 provided through the Illinois Department of Corrections.

  Tamms Correctional Center: Information about Tamms is posted at the Illinois Department of Corrections Web site, http://www.idoc.state.il.us/subsections/facilities/information.asp?instchoice=tam, and in a brochure available at the institution, 200 E. Supermax Road, P.O. Box 400, Tamms, IL 62988; (618) 747–2042.

  clearly prone to murder again: The number of murderers destined to repeat their crimes actually appears relatively small. For example, in a nationwide study published in 1989 of 558 prisoners who’d had their death sentences commuted by Furman, seven murders had been committed by five persons; six murders occurred in the penitentiary, and one after release. J. Marquart and J. Sorensen, “A National Study of Furman-Commuted Prisoners: Assessing the Threat to Society from Capital Offenders,” reprinted in The Death Penalty in America, p. 162; see also H. Bedau, “Prison Homicide, Recidivist Murder and Life Sentences,” in The Death Penalty in America, p. 176. The authors thought their data called into question the notion that the future dangerousness of murderers in general justified the death penalty.

  objections from the left: See, for example, R. Good, “The Super-Max Solution,” The Nation, 3/3/03, p. 7, describing a lawsuit filed on behalf of four mentally ill Tamms inmates, claiming that the enforced isolation of the facility fosters mental instability.

  Tamms is expensive: Cost figures are from the Illinois Department of Corrections. The cost of confinement at Tamms is placed at more than $52,000 per prisoner on the facility’s Web site, http://www.idoc.state.il.us/subsections/facilities/information.asp?instchoice=tam. The same figure is a little over $22,000 at the state’s largest and most notorious prison, the Stateville facility near Joliet. http://www.idoc.state.il.us/subsections/facilities/information.asp?instchoice=sta.

  we had reached a broad consensus: The Preamble to the Report, p. i., set forth the Commission’s points of general agreement.

  a series of rule changes…by the Illinois Supreme Court: In addition to establishing a Capital Litigation Bar, new Illinois Supreme Court Rule 416 requires prosecutors to make up their minds about whether they’re going to pursue the death penalty within 120 days of arraignment, ending the prior practice under which defense lawyers in many first-degree murder cases never knew before trial if they had to prepare for a death penalty hearing. The Court also requires case management conferences in capital cases, and certifications from both sides. Defense lawyers must certify that they’ve fully advised their client about the case, and prosecutors that they’ve met with investigators and have turned over all discoverable material to the defense. New Rule 417 establishes a protocol for admission of DNA evidence.

  wrong cases had reached death row: For example, at the time Furman was decided, Illinois had only 31 persons on death row, as opposed to the 171 who were there at the end of 2002. See J. Marquart and J. Sorensen, “A National Study of Furman-Commuted Prisoners: Assessing the Threat to Society from Capital Offenders,” reprinted in The Death Penalty in America, p. 164.

  all…interrogations…videotaped: See Report, Recommendations 4–7, pp. 24–28, for the discussion of videotaping and related proposals. See also p. 33, discussing related jury instructions.

  altering lineup procedures: The Recommendations regarding identification procedures are numbers 10–15, Report, pp. 31–40.

  pretrial hearings to determine the reliability of…informants: Recommendations 51 and 52, Report, pp. 121–23, set forth proposed procedures regarding in-custody informants.

  death sentence not…imposed without…concurrence…trial judge: Trial judge concurrence in death sentences was outlined in Recommendation 6
6, Report, pp. 152–54.

  banning…death penalty…based solely on…lone eyewitness or…accomplice: Recommendation 69, Report, p. 158, would bar capital sentences when based on the uncorroborated testimony of a single eyewitness or jailed informant.

  eligibility criteria…trimmed to five: Our proposals for reduced eligibility criteria, Recommendations 27 and 28, were set forth and explained at Report, pp. 65–79.

  urged creation of a statewide oversight body: Recommendation 30, Report, pp. 84–88, details the composition and function of the proposed statewide review panel.

  guaranteed sentences of natural life: Recommendation 67, Report, pp. 155–56, proposed the new mandatory natural life sentence for death-eligible cases.

  expediting…post-conviction: Recommendations 72–75, Report, pp. 169–76, set forth our ideas for trying to shorten the death penalty endgame.

  major newspapers endorsed…as did…state bar: The State Bar Association endorsed seventy-six of our eighty-five proposals, including the state review commission and reducing death penalty eligibility. See ISBA Bar News, vol. 43, no. 1, 7/15/02, http://www.isba.org/association/027%2D15a.htm.

  state prosecutors’ organization…dug in its heels: The state prosecutors’ association responded on May 16, 2002, with its own report. See Illinois State’s Attorneys Association, Response to the Report of the Governor Ryan’s Commission on Capital Punishment, 5/16/02, and “Ryan Panel Plans Hit by Prosecutors,” Chicago Tribune, 5/17/02.