Fall 1997 Human Rights Magazine

By Ky Henderson

An Illinois coalition moves to stop the death penalty in the wake of startling statistics

Their names spark vague recognition in many Illinois residents: Rolando Cruz, Alejandro Hernandez, Verneal Jimerson, Dennis Williams, Joseph Burrows, Gary Gauger, Carl Lawson, Perry Cobb, Darby Tillis.

Most people may at least remember hearing about some of them. Others could identify who a few of the men are, but come up blank on the rest. Yet the state and residents of Illinois owe a debt to these nine men that is so great, it cannot - and will not - ever be repaid.

They are the former Illinois Death Row inmates who have been found innocent and freed in the decade since the death penalty was reinstituted in the state. In the same period of time, the state executed only eight men. All together, those freed spent a total of 52 years on Death Row, and another 36 in county jails and state prisons.

In the last four years, 17 Death Row inmates in the nation have been found innocent and freed. Seven of those men were in Illinois. Many legal advocates in the state and around the country are dismayed that the state's justice system could have repeatedly failed so miserably. Throughout every one of the men's ordeals, corruption, flawed investigations, and inadequate legal representation plagued them. And in the cases of eight of the nine men, it took the intervention of people completely outside of the justice system for them to win back their freedom.

"Illinois' capital punishment system is in a state of intolerable crisis," says Locke E. Bowman, legal director of the MacArthur Justice Center at the University of Chicago. "It has an absolutely inexcusable and unsatisfactory record."

Last July, about 40 lawyers, judges, and legal organizations signed a petition asking the Illinois Supreme Court for a 1-year moratorium on setting execution dates so that an investigation could be made to find out why the state has sentenced so many innocent men to die. Written by Bowman, the request was filed as an amicus curiae brief, and asks the Court to create a special commission to be made up of highly qualified members of the criminal defense community, prosecutors, judges, academics, and other experts.

The coalition also requested Illinois Gov. Jim Edgar to grant reprieves to any defendants scheduled for execution and to appoint a death penalty commission, Attorney Gen. Jim Ryan to reexamine capital cases now on appeal, and Cook County State's Attorney Richard Devine to review procedures for handling capital cases.

Not long after the brief was submitted, the Cook County state's attorney's office submitted a response in which it argued that Illinois is one of the leading states in the country for providing capital defendants numerous avenues of review of their cases. In other words, the state argued, the very fact that these men were freed is proof that the system works.

"One possible explanation for everything is that the state of Illinois is very, very good at finding error," says Renee Goldfarb, the supervisor of the criminal appeals division in the Cook County state's attorney's office who helped write the response. "There's no Constitutional right to have post-conviction appeals, let alone attorneys who the state pays for, yet the state of Illinois has provided these things."

One major criticism, however, of not only Illinois' capital punishment system, but of those in states all over the country, is that court-appointed counsel in capital cases is of extremely poor quality. People used to believe that capital cases were no different than any others, and therefore lawyers didn't see an overwhelming need to spend the time and money to exhaustively explore every possible avenue during investigation, says Richard C. Dieter, executive director of the Death Penalty Information Center in Washington, D.C.

"The quality of lawyers at trial for defendants in capital case is often abysmal, such that you can wind up getting the death penalty more because of how bad your lawyer was than because of how bad you were," says New York lawyer Ronald Tabak, chair of the Individual Rights & Responsibilities Section's Death Penalty Committee and an architect of the ABA's death penalty moratorium resolution. "People who commit worse crimes often don't get the death penalty if they have a better lawyer than people who commit less aggravated crimes."

That may be changing in Illinois, however. Edgar recently approved legislation allowing some convicts the benefit of DNA and other scientific testing not available at the time of their trials. And after federal funding for state resource centers was eliminated last year, the state legislature approved funding for the Capital Litigation Division of the Illinois State Appellate Defender's Office. The division has essentially taken the place of the resource center, with legal teams assigned by the Illinois Supreme Court to represent Death Row inmates in pursuing post-conviction remedies. Significantly, even the division's director, Marshall J. Hartman, believes the moratorium should be put into place.

Dieter says the fact that eight of the nine men were freed after intervention from outside forces suggests that Illinois has an unusually active and resourceful community of legal crusaders willing to do pro bono work and investigations. Nationally, about 1 percent of Death Row inmates are found to be innocent. But Dieter adds that if other states had resources like Illinois', that percentage would probably rise.

Outside intervention certainly played a crucial role in last year's well-publicized release of the Ford Heights Four, two of whom - Williams and Jimerson - were sentenced to death. The men were convicted of murder and rape in 1978 after a recently engaged Caucasian couple were found dead in a predominantly African-American section of Chicago. It took private investigators, a Northwestern University journalism professor and his students to get a statement from a witness saying she had lied due to police pressure. In addition, they obtained confessions from the men who had actually committed the crime. The confessions were then corroborated with DNA testing.

Advocates and lawyers are quick to point out that exonerations like those of the Ford Heights Four are far from examples of the justice system working.

"It would be one thing if we could say the system works, and that individuals followed procedures and were found innocent, but in fact in all the cases it was really a fluke," says state Rep. Jan Schakowsky (D-Evanston), who with six other legislators is sponsoring a bill to amend the Illinois Criminal Code to suspend executions for one year. "We find persistent wrongdoing on the part of law enforcement. It's really sheer luck that those convicted of these crimes were exonerated in the end."

All of the cases involved heinous crimes, and six of the nine involved people of color convicted and sentenced to death for interracial murders. In four of the cases, a rape was involved. Advocates say that the extreme pressure from the public on law enforcement to capture, convict, and give the death penalty in these cases leads to faulty police work - some accidental, some deliberate.

In the case of the Ford Heights Four, police learned who the real killers were just days after the fact, but police "deep-sixed the information because they had already gone about their frame and couldn't possibly expose it at that point," says Lawrence Marshall, a Northwestern law professor who participated in the cases of five of the nine men released.

The political force the death penalty has is unequaled in the criminal justice system. In Illinois, critics charge the justice system in big counties like Cook of being far too political, and say some of those within the system look at it as nothing more than a political stepping stone. Going for and getting the death penalty in well-publicized cases looks good to most constituents. Currently, the mayor of Chicago, attorney general, and a former governor are all former state's and district attorneys, and a current U.S. attorney is rumored to be planning a run for political office. "If you want to take politics out of it," says Marshall, "you have to do something about the fact that it's become a political office instead of a professional office."

How to remedy that problem and all the others is what supporters of the moratorium hope the Supreme Court-appointed commission will be able to do. Because of the many injustices inherent in the way the death penalty is administered not just in Illinois but all over the country, Tabak says that groups in many states are coming out in support of both national and state moratoriums, including the ABA's. Meanwhile, Death Row inmates like Ronald Jones, whose case in Illinois was reopened in July after DNA testing indicated his innocence, cling to the possibility of freedom.

"If you have a money judgment, you can appeal and it's reversed and everyone gets their money and it's fine," Hartman says. "But when somebody's executed, you can't bring them back. What if nine innocent people had been executed? That's a very frightening thought."

Ky Henderson is a writer in Chicago.

As published in Human Rights, Fall 1997, Vol. 24, No. 4, p.10-11.