Ultimate Punishment (12 page)

“impossible to determine”
: The
Hernandez
Brief, pp. 26–28, quotes Judge Nelligan's remarks from the trial record and his summary of the officer's testimony.

“the one statement that tied this Defendant”
: This quote comes from Judge Nelligan's remarks at Alex's sentencing, set out in the
Hernandez
Brief, p. 26–28.

any
rational jury: Jackson v. Virginia
, 443 U.S. 307, 319 (1979), sets forth the standard for review of a jury's verdict. In
Hernandez
II, p. 23, the Court followed the familiar practice of quoting
Jackson
and underlining “any,” so the verdict cannot be disturbed if “
any
rational trier of fact” could have reached the same conclusion. See
People v. Collins
, 116 Ill. 2d 237, 261 (1985).

Nelligan…regarded the meaning…as “impossible to determine”
: In Alex's appeal, we maintained that the Marquez statement, as testified to by the officer, was so devoid of context as to be meaningless, and therefore improperly received in evidence. The Appellate Court declined to address the issue, finding that the trial lawyers had failed to offer a timely objection, making the question unreviewable on appeal. See
Hernandez
II, pp. 16–17. During argument, the court had appeared so interested in the issue that afterwards both parties made supplemental filings on the law.

Matt Tanner and Leslie Suson, and I appeared before the Illinois Appellate Court
: See
Victims
, p. 261, for an account of the oral argument in
Hernandez
II.

appellate courts refuse to…“retry his case”
: Thus in reviewing the evidence of Alex's guilt, the Court in
Hernandez
II stated, “It is not the province of this court…to retry the defendant,” meaning, in short, “It's not up to us to decide if he's actually guilty.”

Porter's lawyers…developed…proof that…Simon
: Porter's lawyers' contentions regarding Alstory Simon were summarized by the Illinois Supreme Court: “The evidence pointed to is the proposed testimony of several persons which could have suggested Alstory Simon, rather than defendant, killed Hillard and Green. The evidence, summarized below, is stated in affidavits and recorded sworn oral statements filed in support of defendant's post-conviction petition. Joyce Haywood would have testified that the victims had walked to the park with Alstory Simon and his girlfriend, Inez Johnson. The victims' mothers and Christina Green, Marilyn Green's sister, would have corroborated the point. Ricky Young could have testified that Hillard had been selling drugs for Simon and that a dispute existed between Simon and Hillard over money. Roy Davis, Hillard's brother, would have stated, in contrast, that no animosity existed between defendant and Hillard, who were members of the same street gang. Finally, Joyce Haywood would have revealed further that Simon had threatened her when she had asked about what had happened in the park.”
People v. Porter
, 164 Ill. 2d 400, 403–4, 647 N.E.2d 972, 207 Ill. Dec. 479 (1995). See also
Porter v. Warden
, No. 95 C 4111 (United States District Court for the Northern District of Illinois, 4/3/96);
Porter v. Gramley
, 112 F.3d 1308 (7th Cir. 1997);
People v. Porter
, 111 Ill. 2d 386, 489 N.E.2d 1329, 95 Ill. Dec. 465 (1986). No court ever found Porter's evidence of innocence compelling. Thus the Seventh Circuit said in Porter's last
habeas corpus
appeal: “[T]he affidavits
and
statements that Porter has submitted are far from convincing, especially when weighed against the direct, eyewitness testimony implicating Porter. Much of the evidence suggesting that someone other than Porter committed the murders, for example, is second-and third-hand in nature, and the first-hand information (such as the affidavit stating that victim Jerry Hillard was arguing in the park that night with someone other than Porter) can only be considered weak circumstantial evidence of Porter's innocence.”
Porter v. Gramley
, 122 F.3d 351, 353 (7th Cir, 1997).

“
Death is different
”: The saying is a paraphrase of Justice Stewart's remark in
Woodson v. North Carolina
, 428 U.S. 280, 303–4 (1976), where he stated that “death is a punishment different from all other sanctions in kind rather than degree.”

four…persons…ultimately exonerated
: For an article tracking what happened to those whose lives
Furman
spared, 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.

bravest advocates of capital punishment
: William Kunkle, the former First Assistant State's Attorney in Chicago, is one such death penalty proponent willing to take this position.

murder rate in…United States…four times…European Union
: The murder rates cited come from a document on the Web site of the British Home Office, G. Barclay, C. Tavares, A. Siddique, “International Comparisons of Criminal Justice Statistics 1999,” Home Office Bulletin, Issue 6/01, May 2001, posted at
http://www.home office.gov.uk/rds/pdfs/hosb601.pdf
. Other data is collected at
http://www.angelfire.com/rnb/y/homicide.htm#murd
.

not fair that Europeans judge us
: Tending to prove that Europeans get as angry as Americans in the face of crime is the French election of 2002, when a rise in immigrants' crimes was the cited reason that Lionel Jospin of the Socialists, the traditional opponents of the ruling Gaulists, didn't make the runoffs for French President. Instead, Jospin was outpolled by Jean-Marie Le Pen, who probably would have been comfortable with a klaxon and bedsheet in the American South of the 1930s. See, for example, “Shock Success for French Far Right,”
http://news.bbc.co.uk/1/hi/world/europe/1942612.stm
.

prosecutors emphasized two different shoeprints
: The shoeprint incident, with transcript quotations and citations, is set out at pp. 43–46 of the
Hernandez
Brief. See
Victims
, pp. 193–94, detailing how the prosecutors had used the same prints and the same theories to send Cruz to death row.

far smaller woman's size
: A woman's size-six shoe corresponds to a man's four or four and a half, a size I've yet to see on the shelf of any men's store. See
http://onlineconversion.com/womens_clothing.htm; http://funkefeet.com/funk-shoeSize.html
. In
Victims
, Frisbee and Garrett say that Detective John Sam had been assured in 1983 that these shoeprints had been made by friends of Jeanine's sister who had run around the house looking for the little girl in the immediate aftermath of her disappearance (
Victims
, p. 34). The size of the prints, and the women's tread design positively identified on one of them, obviously fortifies that explanation.

first…trial…reversed
: The quotation on the prosecutors' deliberate misuse of evidence comes from
People v. Cruz
, 121 Ill. 2d 293, 333, 521, N.E.2d 18 (1988). See also
People v. Hernandez
, 521 N.E.2d 25.

more inadmissible proof: Cruz
II, 162 Ill. 2d at 355–58, details the prosecutors' impeachment of Irma Rodriquez. “[W]e cannot but conclude that the motivation…was improper,” the Court said.
Id
. at 363.

jailhouse witnesses…testify they had no deal: Cruz
II, 162 Ill. 2d at 328, describes how Robert Turner, a death row informant who'd been a witness against Cruz, testified that Robert Kilander, one of the Cruz trial prosecutors, never said anything to Turner about Kilander's providing favorable testimony for him. Kilander later testified when Turner was resentenced and acknowledged that before getting on the stand against Cruz, Turner wanted to be certain Kilander would testify, 162 Ill. 2d at 332, which, the Court said, “clearly impugns” Turner's testimony.
Hernandez
I, 121 Ill. 2d at 308, recounts an incident at the first Hernandez trial in which Tom Knight, the original prosecutor of these cases, called an Assistant State's Attorney from a neighboring county as a witness to testify that Marquez received no preferential treatment and that Knight never spoke to the Assistant about that. The neighboring prosecutor was then impeached with the transcript of Marquez's sentencing, which showed that Knight had in fact requested leniency for Marquez. See also
Victims
, p. 78.

officer said…he'd actually been in Florida
: See
Victims
, pp. 269–70; M. Possley, “Cruz's Legal Defense Team Worked for Free, But Not for Nothing—Single Date Cracks the Code of Freedom,”
Chicago Tribune
, 11/6/95, p. 1.

indictment of seven men
: See
Victims
, pp. 284–85; A. Barnum, T. Gregory, “Impending Indictments in Cruz Scandal Rock DuPage,”
Chicago Tribune
[DuPage Sports Final], 12/10/96, p. 1; T. Gregory, “DuPage Judge Is Target in Cruz Case,”
Chicago Tribune
, 12/11/96.

law enforcement officers…acquitted
: M. Possley and T. Gregory, “DuPage 5 Win Acquittal,”
Chicago Tribune
, 6/5/99.

multimillion-dollar settlement
: See, e.g., J. Chase, “Angry DuPage Settles Cruz Suits—3 Former Defendants to Split $3.5 Million,”
Chicago Tribune
[Chicago Sports Final, N Edition], 9/27/00, p. 1; “Acquitted Ill. Men Win Settlement” at
http://www.crimelynx.com/cruz.html
.

that DNA establishes Dugan's role with “scientific certainty”
: Birkett, who ran for Illinois Attorney General and was chastised for his alleged part in the Cruz/Hernandez case during the campaign, did not disclose the new DNA results concerning Dugan until after he had lost the election. See S. Mills and C. Parsons, “Birkett Clings to Cruz Link in Killing,”
Chicago Tribune
[North Sports Final Edition], 11/15/02, p. 1. See also “Acquitted Ill. Men Win Settlement” at
http://www.crimelynx.com/cruz.html
(“ ‘It is morally repugnant to give money to someone we think may have committed this crime,' Birkett said”).

attempted to strip Ronald Mehling of his position as Presiding Judge: Victims
, p. 278; see also A. Barnum, “High Profile Case Judge to Retire,”
Chicago Tribune
, 6/20/02.

Robert Kilander…now the Chief Judge
: A. Barnum, “Kilander Voted County's Chief Judge,”
Chicago Tribune
, 1/17/01.

U.S. Supreme Court had ruled…unconstitutional…statement of…impact: Booth v. Maryland
, 482 U.S. 496 (1987) ruled victim impact testimony unconstitutional in a capital sentencing hearing.

Court…reversed itself
: In
Payne v. Tennessee
, 501 U.S. 808 (1991), the Court explicitly overruled
Booth
and concluded that victim impact testimony could permissibly contribute to an assessment of a defendant's blameworthiness by helping measure the harm of his crime.

Now…victims have a statutory right…to be heard
: Chapter 725, Act 120, of the Illinois Compiled Statutes (720 ILCS 120/1) is the Rights of Crime Victims and Witnesses Act. Section 120/4(4) gives victims the right to address the court at sentencing. Other rights protected by the statute include notification of court proceedings, a right to be present or to have a representative present in court, and the right of restitution.

“[M]y 10 year-old daughter”
: Citations to Mrs. Larson's testimony are from the transcript of the 12/13/00 Commission session conducted in Springfield, Illinois.

Laura Tucker
: Ms. Tucker appeared before the Commission in Chicago on 8/2/00.

Apprendi v. New Jersey
: 530 U.S. 466 (2000).

less than half of one percent had actually been executed
: In Illinois, for example, before the moratorium roughly 285 persons had been sentenced to death but only 12 executed. This is not an anomalous result. In his national study, Professor Liebman of Columbia found that as of 1995, across the country more than 5,700 death sentences had been imposed since
Furman
, but only 313 had been carried out.
http://justice.policy.net/jpreport/section7.html#a
.

“I thought I would feel satisfied”
: Jay Stratton is quoted in M. Pearl, “Dante and the Death Penalty,”
Legal Affairs
, January—February 2003, p. 38.

survivors only experience more emotional turbulence
: J. Diaz,
The Execution of a Serial Killer
(Poncha Press 2003), p. 130, a fine narrative describing a scholar's reaction to being a witness at an execution, deals briefly with the slight literature of victims' post-execution reactions. See also R. J. Lifton, G. Mitchell,
Who Owns Death?: Capital Punishment, the American Conscience, and the End of Executions
(HarperCollins, 2002), pp. 197–212. Some murder survivors, such as those in Murder Victims' Families for Reconciliation, insist forthrightly, “Executions are not what will help us heal.” See, generally, Murder Victims' Families for Reconciliation Web site,
http://www.mvfr.org/homepage.html
.

told reporters…experienced a sense of relief: http://www.cnn.com/2001/LAW/06/11/victims.reax/
describes the reported reaction of many of the survivors who witnessed McVeigh's execution.

critics may label the survivors' desire for death “retribution”
: For an outstanding discussion of retribution, revenge, and other questions regarding victims in particular and capital punishment in general, see A. Sarat,
When the State Kills
(Princeton University Press, 2001), pp. 33–59.