Ultimate Punishment (14 page)

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 police 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.