Ultimate Punishment (3 page)

U
NDERLYING THE EXONERATIONS
in Illinois' death row cases were a few fundamental questions. How could experienced police officers and prosecutors be taken in by false evidence—or even assume a role in manufacturing it? And how could juries fail in their enshrined role of protecting against such abuses and actually buy in?

Thinking about Alex's case and studying the other exonerations in Illinois, I eventually recognized that there is a unique array of factors in death penalty cases that can lead to wrongful convictions. Prosecutors in capital cases have extraordinary leverage over the accused. Defendants who avoid the death penalty do so most often by pleading guilty. Inherent in capital punishment is the risk that an innocent person faced with the choice of living or dying might plead. Many others, of course, accept the peril and demand a trial. When they get it, the law requires removing from the jury any person who says he or she will refuse to impose a capital sentence. It is difficult to imagine what else the law might do other than banish those who will not adhere to its command, but studies have repeatedly asserted that the resulting jury pool is more conviction-prone.

Yet at the end of the day, the factor that is the greatest snare for the innocent is the nature of the cases themselves. In Illinois, in the last twenty-five years, approximately one in every fifty convictions for first-degree murder has resulted in a capital sentence. Even in Wyoming, which has the highest death-sentencing rate in the country, fewer than 6 percent of homicides end up with a sentence of execution pronounced. That is consistent with the command of the U.S. Supreme Court, which has ruled that death may not be the automatic punishment for first-degree murder. In practice, capital punishment is reserved for “the worst of the worst,” that is, those crimes which most outrage the conscience of the community. Paradoxically, this makes for the capital system's undoing, because it is these extreme and repellent crimes that provoke the highest emotions—anger, especially, even outrage—that in turn make rational deliberation problematic for investigators, prosecutors, judges, and juries.

Under enormous pressure to solve these cases, police often become prisoners of their own initial hunches. A homicide investigation is not an academic inquiry allowing for even-handed consideration of every hypothesis. Instead, it's conducted in an atmosphere where primitive fears about unknown, dangerous strangers imperil our sense of an orderly world. There is a strong emotional momentum to adopt any explanation. Cops often feel impelled to take the best lead and run with it.

A few weeks before Jeanine's murder, the Nicaricos had hired a Spanish-surnamed cleaning lady who turned out to have a son with a burglary record. He ultimately proved to be blameless in this case, but from that start grew the police theory that the crime had been intended to be a burglary, committed by a gang of Hispanics—even though no valuables were ever found missing from the Nicarico house. When Alex appeared, telling tales, he fit an existing preconception, a theory to which many officers became wedded the longer it persisted, making it virtually impossible for them to accept the fact that a white serial rapist, namely, Brian Dugan, was the actual culprit.

If law enforcement professionals respond in this fashion to the emotionalism of grave crimes, it is foolhardy to expect anything better from the lay people who sit on juries. By the time of Alex's third trial, in May 1991, the evidence against him was so scant that the DuPage County State's Attorney's Office actually sought an outside legal opinion to determine whether they had enough proof to get the case over the bare legal threshold required to ask a jury to decide the matter. By then, Dugan had admitted to the crime and DNA had excluded Alex as the rapist. John Sam, one of the lead detectives on the case, had quit the force because he believed DuPage had accused the wrong men, a point of view shared by the chief of police in Naperville, James Teal. And Marquez, who'd reported the I-held-her-down statement, had now disavowed his testimony.

Instead, the state tried to offer the Marquez evidence through a police officer who'd been outside the room where Marquez and Hernandez met. The officer testified that he had no memory at all of the conversation. All he could do was recite the contents of a report he'd put together three weeks after the event, long after Marquez's version of the encounter was known. The officer couldn't understand Spanish, in which he acknowledged most of the conversation was conducted. He admitted being twelve feet from the door to the room and even at that didn't know whether it was open or closed. He conceded that he'd destroyed his notes and that what he'd written down at the time wasn't verbatim. And he had no memory of a single word Marquez had spoken to prompt the fragmentary responses from Alex contained in the police report. Later, the trial judge, John Nelligan, remarked, “It is impossible to determine the context…not to mention the obvious meaning of the language [the officer] recorded.”

But even though a veteran trial judge couldn't place any meaning on what he referred to as “the one statement that tied this Defendant indirectly to involvement in the death of Jeanine Nicarico,” the jury convicted. The case demonstrated to me the propensity of juries to turn the burden of proof against defendants accused of monstrous crimes. The notion of a ten-year-old girl being overpowered by an intruder and dragged from the safety of her parents' home, sexually tortured, and then in the end beaten to death is so revolting that I used to explain Alex's and Rolando's convictions by saying that I thought Mother Teresa might have been in jeopardy if she were in the defendant's seat. Jurors are unwilling to take the chance of releasing a monster into our midst, and thus will not always require proof beyond a reasonable doubt.

An enduring problem is that the standards for review of juries' fact-finding decisions in these highly emotional cases is the same as when a defendant is accused of stealing candy from a five-and-dime. Appellate courts are asked to assess whether
any
rational jury could have reached this conclusion, with the italics in place when the legal standard is stated. In so doing, courts must take all evidence “in the light most favorable to the verdict,” meaning that they must draw all inferences from the evidence and resolve all credibility questions in a way that supports the jury's decision. An appellate judge's own nagging doubts about an unsavory state witness or the unlikeliness of the prosecutor's theory about motive may not lead to setting the verdict aside. In Alex's case, this meant that even though Judge Nelligan personally regarded the meaning of Alex's exchanges with Marquez as “impossible to determine,” he was not empowered to overturn the jury's verdict; the best he could do was refuse to impose a death sentence and give Alex eighty years. When my colleagues, Matt Tanner and Leslie Suson, and I appeared before the Illinois Appellate Court and I argued Alex's appeal, I found the judges similarly skeptical of the same evidence, and I believe their observations from the bench ultimately led the prosecutors to decide not to re-prosecute. But even though the court reversed the judgment, given the deference to a jury's findings, the justices, like Judge Nelligan, could not say that the verdict was completely irrational, which is what the law requires for an outright acquittal on appeal.

Aside from reviewing a verdict once to ensure it's within the broad borders of rationality, the courts by rule are precluded from ever dealing much with the facts of a case again. Although many Americans complain about the parade of years that goes into death penalty litigation, the proceedings after trial never again directly involve the question of whether the defendant is actually guilty. Instead, they usually center on repeated assaults on the competence of the trial lawyers, because that, generally speaking, is the only avenue for attack that is open. But the appellate courts refuse to allow a defendant to, in the parlance, “retry his case.” Guilt is taken as a fact determined, even when a defendant has marshaled substantial new evidence that the jury never heard.

Years before he was released, Anthony Porter's lawyers had developed a good deal of proof that Alstory Simon, not Porter, had committed the murders for which Porter sat on death row. Five different times, the Illinois and federal courts refused even to grant Porter an evidentiary hearing, because of the supposed strength of the original trial evidence and because of various rules limiting those courts' rights to reweigh it.

There are reasons for the law's reluctance to allow appellate courts to reconsider the evidence. It would reduce the traditional power of the jury, a citizen bulwark against abuses by the state, if appeals courts could just ignore a jury's conclusions. Besides, appeals court judges haven't seen the witnesses testify, haven't had the opportunity to assess demeanor or to absorb the thousands of details that we take in when we encounter one another in person. And trials would be unending if defendants could keep coming up with one more scrap of information to establish their innocence after verdicts had been entered.

Yet in the charged atmosphere of capital cases, which so tempt juries to allow emotion to guide their decisions, some limited means of verifying the jury's findings ought to be in place, at least if we want to continue to impose the death penalty. And given the propensities of juries in these cases, when a condemned prisoner claims he has mustered new evidence of his innocence, courts must be more open to an unbiased evaluation of that proof.

It goes without saying that even those who support capital punishment recoil at the prospect of executing the innocent. For most of us there is a special horror in this that is difficult even to fully articulate. It's not as if imprisoning an innocent person for life is anything other than a horrific abuse of human rights; but an unwarranted execution is measurably worse. As the courts often succinctly put it, “Death is different.” Part of it is the fact that as long as a prisoner lives, there's some hope he can establish his innocence. (In fact, four of the persons on America's death rows at the time
Furman
saved them were ultimately exonerated.) More of our revulsion, I think, stems from the fact that executing the innocent stands justice on its head, making the law a force of barbarism rather than of civilization.

Some of the bravest advocates of capital punishment have been willing to acknowledge that having a capital system will inevitably entail executing someone who is innocent. They argue that what we gain with the death penalty is worth the cost—and point to other social conventions, such as the use of the automobile or alcohol or childhood inoculations, which we tolerate despite knowing that innocent lives will be lost.

But when it comes to an institution as idealized as justice, I doubt most Americans are comfortable with the trade. For the majority of us, the prospect of executing someone who is blameless casts a special pall over the death penalty. The fact that capital cases are uniquely prone to error calls either for safeguards we have yet to institutionalize—or even fully conceive of—or for renewed reflection about whether to proceed with capital punishment at all.

S
HOULD A DEMOCRATIC STATE
ever be permitted to kill its citizens? The question may sound like PoliSci 101, but it has an essential place in discussion of the death penalty. If the people are the ultimate source of authority in a democracy, should the government be allowed to eliminate its citizens, who are supposed to be a superior power? As a lawyer who tended to see the death penalty debate in the constitutional terms in which it has been presented—as an unduly cruel punishment, or a maddeningly arbitrary one—I had attended less to the relevant issues of political theory until I visited the American Academy in Berlin in 2000 and discussed capital punishment in the United States. After my address, a law professor, perhaps as old as ninety, rose with obvious difficulty and said, “Here, vee could neffer efen consider again allowing zee state to kill.”

His implicit reference to Germany's Nazi past contained not only a sobering reminder of the lessons of history but a powerful and elegant argument. If the government is never permitted to end the life of its citizens, then any such killing would mark an outlaw regime.

I am one of those who tend to find Western European criticisms of capital punishment somewhat misplaced, because Europeans generally overlook how different their circumstances are from ours. The murder rate in the United States is about four times that in the European Union. It is probably not fair that Europeans judge us without living in a society as divided as ours, as fractious and dangerous, a society where the fear, grief, and outrage that murder inspires are far more prevalent.

As important, the American and European pasts offer different omens. Despite Western Europeans' frequent self-congratulation on their civility, it is, in fact, their democracies that have repeatedly been overwhelmed by dictators. Franco. Mussolini. Salazar. Hitler. Pétain. Where democracy has proven fragile, the day seems far less remote when another madman can commandeer the power of the state to kill his enemies. In the U.S., we have, in the last five years alone, endured impeachment of our President, a controverted election of his successor, and a devastating attack on American soil by a foreign force. Despite these disruptions, we have never once seen troops in our streets to restrain citizens. I have always felt that it tempts fate too much to say, as Sinclair Lewis would have it, “It can't happen here,” but we must bear in mind that American opinion about capital punishment is subtly dependent on the extraordinary stability of our democratic institutions.

This doesn't mean, however, that the problem of bad faith by governmental officials has no place in discussion of the death penalty. In Illinois, we have 102 elected State's Attorneys, each with the power of life and death in his or her hands while confronting a frightened electorate demanding quick justice, as the public inevitably does in the face of ghastly murders. It is not simple posturing to say that most prosecutors withstand these pressures with professionalism. But even if only a few in a hundred proceed with a blind eye to the facts or the law, the results are unacceptable.

To sidestep the powerful evidence of Brian Dugan's guilt, the state, in Alex Hernandez's second trial, tried to suggest that Alex could have been there with Dugan, notwithstanding the lack of any evidence the men so much as knew each other (or any explanation why one of them wouldn't have named the other to save his life). Nonetheless, to prove there was more than one intruder at the Nicarico home, the prosecutors emphasized two different shoeprints that had been found behind the house, near a window where would-be burglars, supposedly including Alex, could have looked inside. The shoeprints were mentioned in the prosecutor's opening statement, and nine prosecution witnesses were questioned about them, attempting to establish that the prints were connected to Jeanine's disappearance. One of the witnesses testified that Alex, who stands five foot three, admitted to the grand jury that he wore size-seven shoes. Then a shoeprint expert testified that the prints in question were “about a size six.”

On cross-examination, the defense lawyer, Mike Metnick, probing this testimony, eventually asked:

Indeed, not only had the expert employed the far smaller woman's size in his testimony about the shoe prints but it also turned out that the tread pattern on one print had been identified as made by a shoe manufactured for women. The expert had known this for a week and had told the prosecutor, Robert Kilander, the First Assistant State's Attorney, before getting on the stand. Kilander never informed the defense lawyers that the print came from a woman's shoe, and simply offered the expert's testimony against Alex Hernandez, a male—and a man on trial for his life.

When Metnick, Urdangen, and Raley moved for a mistrial, Kilander claimed, “I had no knowledge there was any difference between a female and male size six shoe.” That still didn't go to explain why he withheld the fact that one print could be proven to be from a woman's shoe. He answered that in a separate hearing several months later. “It slipped my mind,” Kilander said.

Defense lawyers lob empty accusations of misconduct at prosecutors and cops all the time. But in the Nicarico prosecutions, judges agreed. The first joint trial of Hernandez and Cruz was reversed by the Illinois Supreme Court because of what it labeled “a deliberate and constitutionally unacceptable attempt by the prosecution” to convict each man with evidence inadmissible against him. Despite that, the improperly motivated injection of more inadmissible proof was one of the grounds for reversal when the Illinois Supreme Court set aside Cruz's second conviction. In that opinion and in the first Hernandez reversal, the Supreme Court also commented on two instances in which DuPage had allowed jailhouse witnesses to testify they had no deal with the prosecutors; the Court noted that on each occasion the trial prosecutors in fact had spoken up for each man when he was sentenced.

In 1995, following the second reversal of Cruz's conviction and death sentence, he chose to be tried by a judge alone, since Rolando's lawyers had come to accept that a jury would never see this case for what it was. However, the third Cruz trial came to an abrupt end when a police officer, who'd earlier corroborated two colleagues' account of Cruz's “vision statement,” now returned to court to acknowledge that his prior testimony was false. The officer said he'd discovered he'd actually been in Florida at the time the other cops had supposedly recounted the vision statement to him.

Judge Ronald Mehling acquitted Rolando, and a few months later the case against Alex was dismissed. In the ensuring uproar, a special grand jury was convened, resulting in the indictment of seven men—three former prosecutors and four members of the DuPage County Sheriff's police—on various charges, including conspiring to obstruct justice in the Cruz case. They were tried and, as is often the case when law enforcement officers are charged with overzealous execution of their duties, acquitted, although the county subsequently reached a multimillion-dollar settlement in civil suits brought by Hernandez, Cruz, and their one-time co-defendant, Stephen Buckley.

Accepting that jury's verdict that none of the seven men acted with criminal intent, I still marvel how little chastening there has been in DuPage County. Joe Birkett, Jim Ryan's eventual successor as State's Attorney, celebrated at the victory party for his indicted colleagues the night of their acquittal. He recently admitted that DNA establishes Dugan's role with “scientific certainty,” but still refuses to acknowledge Cruz and Hernandez's innocence.

On the other hand, the judges in the criminal division attempted to strip Ronald Mehling of his position as Presiding Judge, after he acquitted Cruz. While that effort failed in the face of a public outcry, Mehling decided to resign in 2002. When he did, he had to pay for his own retirement party. In the meantime, Robert Kilander, the prosecutor who tried to send Alex Hernandez to death with the print from a woman's shoe and who was subsequently indicted for conspiring to obstruct justice in the Cruz case, has taken the bench and is now the Chief Judge of DuPage County.