Ultimate Punishment (10 page)

This book is a personal reflection, informed more by experience than study, and, as such, is not to be mistaken for a work of scholarship. The following notes are offered solely for the curious, to substantiate the many assertions of fact in the text. In identifying judicial opinions, I have followed accepted legal citation, except for allowing myself the pleasure of abandoning the meaningless anachronism of including mention of a higher court's denial of further review. Web citations were accurate at press time.

 

On February 3, 1984:
The details of Hector Sanchez's crimes are reported in three Illinois Supreme Court decisions captioned
People v. Sanchez
, 115 Ill. 2d 238, 503 N.E.2d 277, 104 Ill. Dec. 720 (1986); 131 Ill. 2d 417, 137 Ill. Dec. 629, 546 N.E.2d 574 (1989); 169 Ill. 2d 472, 662 N.E.2d 1199, 215 Ill. Dec. 59 (1996); and a Wisconsin case,
State v. Sanchez
, 149 Wis. 2d 763, 441 N.W.2d 756 (Wise. Ct. Appls., Dist. 1, 1989).

“
The Case That Broke Chicago's Heart
”: The published opinions of the Illinois Supreme Court set forth much of the story of Buckley, Hernandez, and Cruz.
People v. Hernandez
, 121 Ill. 2d 293, 521 N.E.2d 25, 117 Ill. Dec. 914 (1988);
People v. Cruz
, 121 Ill. 2d 321, 521 N.E.2d 18, 117 Ill. Dec. 907 (1988);
People v. Cruz
, 162 Ill. 2d 314, 643 N.E.2d 636, 205 Ill. Dec. 345 (1994) [hereafter “
Cruz
II”]. The 1995 unpublished opinion of the Illinois Appellate Court's Second Judicial District, reversing Hernandez's conviction in the case I argued in his behalf,
People v. Hernandez
(No. 2-91-0940) (Ill. App. Ct. 1/30/95) [hereafter “
Hernandez
II”], is posted at
http://www.scottturow.com/ultimatepunishment
, along with the brief Matt Tanner, Leslie Suson, and I filed for Alex [hereafter “
Hernandez
Brief”]. A comprehensive account of the Cruz and Hernandez cases from the initial investigation to the eventual indictment of several DuPage County officials involved in the prosecution is contained in T. Frisbee and R. Garrett,
Victims of Justice
[hereafter
Victims
] (Avon, 1998).

A few days before the primary…indicted
: The atmosphere surrounding the initial indictment has been described in
Victims
, pp. 52, 121, and “Ex-Prosecutor Denies Politics Outran Justice,”
Chicago Tribune
, 12/17/85, p. I. See also
Hernandez
Brief, p. 41.

Brian Dugan was arrested
: The details of Dugan's arrest, his subsequent statements, and the ensuing investigation have been recorded often. See, for example,
Cruz
II at 162 Ill. 2d at 331–42;
Hernandez
II at 18–23;
Victims
, pp. 99 fwd.

seventeen men…sentenced to death and later…absolved:
The seventeen are Joseph Burrow, Perry Cobb, Rolando Cruz, Gary Gauger, Alex Hernandez, Madison Hobley, Stanley Howard, Verneal Jimerson, Ronald Jones, Carl Lawson, Steven Manning, Leroy Orange, Aaron Patterson, Anthony Porter, Steven Smith, Darby Tillis, and Dennis Williams. Links to a summary of each case appear on the Web site of Northwestern University Law School's Center on Wrongful Convictions,
http://www.law.northwestern.edu/depts/clinic/wrongful/exonerations/Illinois.htm
.

Porter was released in February 1999
: Anthony Porter's story has been often told. See, e.g., D. Holt and S. Mills, “Double Murder Case Unravels,”
Chicago Tribune
[North Sports Final Edition], 2/4/99, p. I, and the front page of the
Tribune
every day for the next week; Center on Wrongful Convictions;
http://www.illinoisdeathpenalty.com/porter.html
.

Chicago Tribune
published a relentless series:
K. Armstrong and S. Mills, “Death Row Justice Derailed,”
Chicago Tribune
, 11/14/99, p. I, began the
Tribune
's noteworthy series. The remaining four parts ran the next four days. In point of fact, by the Commission's calculation, Illinois death sentences or the underlying convictions were reversed
more
than half the time. See Report of the Governor's Commission on Capital Punishment [“Report”], p. 204, n.29. The report is posted at
http://www.idoc.state.il.us/ccp
.

the overall scorecard
: The scorecard numbers were those gathered by the Commission at the end of 2001, after the moratorium had been in place for two years. See Report, Technical Appendix, Section 2. At that time, there were approximately 15 additional defendants who had been convicted and sent to death row but who had not yet completed an initial appeal. Because the moratorium suspended executions, but not convictions, the numbers in all categories changed in ensuing years. In October 2002, the Illinois Department of Corrections issued a fact sheet that said 313 inmates had been admitted to the condemned unit since the death penalty was reestablished in Illinois in June 1977. “Of the 313 inmates, 123 had their sentence reversed, 2 had their sentence reversed and were discharged, 13 have died in prison, 12 have been executed in Illinois, I has been executed in Ohio, I has been pardoned and I has had the death sentence commuted.”
http://www.idoc.state.il.us/subsections/reports/news/condemnedunitstats.pdf
. Professor James Liebman of Columbia, whose empirical study of death penalty error rates has been highly publicized and hotly disputed (among other reasons, because he looked only to reversals, without regard to whether a death sentence was reimposed), has emphasized that Illinois' error rates are
lower
than the national average. See J. Liebman et al., “A Broken System: Error Rates in Capital Cases 1973–1995,” posted at
http://justice.policy.net/jpreport/
and
http://justice.policy.net/jpreport/liebman 1.pdf
at iii.

Governor Ryan found…death warrant…tormenting
: Ryan spoke often to reporters about the Kokoraleis execution and his reluctance to repeat that experience. C. Falsani, “Present system makes moratorium ‘a moral obligation,' gov says,”
Chicago Sun-Times
, 3/15/02; E. Slater, “A Matter of Life and Death: Illinois Gov. George Ryan Backed Executions Until an Inmate's Fate Was in His Hands,”
Los Angeles Times
[National Edition], 11/8/02, p. 1.

system “fraught with error
”: For a summary of Governor Ryan's statement in declaring the moratorium and the generally positive reaction it garnered, see K. Armstrong and S. Mills, “Ryan: Until I Can Be Sure—Illinois Is First State to Suspend Death Penalty,”
Chicago Tribune
, 2/1/00, p. 1.

1978…no federal death penalty
: The complicated history of the federal death penalty is discussed on the United States Department of Justice Web site.
http://www.usdoj.gov/dag/pubdoc/_dp_survey_final.pdf
.

John Wayne Gacy was scheduled for execution
: Gacy's crimes are described in the opinion of the Illinois Supreme Court affirming Gacy's conviction and death sentence.
People v. Gacy
, 103 Ill. 2d 1; 468 N.E.2d 1171; 82 Ill. Dec. 391 (1984).

Paul Simon…longtime foe of the death penalty
: Senator Simon described his own death-penalty conversion in his biography. P. Simon,
P.S.: The Autobiography of Paul Simon
(Bonus Books, 1998), pp. 73–74.

By the time Ryan left office, at least fifty persons…convicted
: The so-called licenses-for-bribes scandal was a frequent topic of local coverage. For summaries, including a running count of those convicted, see E. Krol, “Secretary of State Hopeful Says Changes Are Needed,” Chicagoland
Daily Herald
, 10/21/02; Illinois Campaign for Political Reform (ICPR), “Licenses for Bribes: The Roots of Corruption, Closer to the Top; State Employees Get Prison Time for Political Fundraising,” January 2001, posted at
http://ilcam paign.org/issuebriefings/ib7.html
and the ICPR Web site,
http://ilcam paign.org/
.

ex-chief of staff and Ryan's political campaign fund…were convicted in March 2003
: M. O'Connor, “Jury Convicts Fawell, Ryan Campaign of Fraud,”
Chicago Tribune
, 3/20/03, p. 1. The article places at fifty-five the number of persons convicted in connection with the federal investigation of Ryan's Secretary of State's office.

Ryan was a pharmacist
: Biographies of George Ryan appear at the Web site of the Illinois Blue Book, 2000 Millennium Edition, pp. 20–21,
http://www.cyberdriveillinois.com/bb/sec1_1_34.pdf
, and 2001–2002 Edition,
http://www.sos.state.il.us/publications/02bluebook/portraits_bios/georgehryan.pdf
.

report by Raymond Paternoster
: Paternoster's study appears at
http://www.urhome.umd.edu/newsdesk/pdf/exec.pdf
. Final report:
http://www.urhome.umd.edu/newsdesk/pdf/finalrep.pdf
. The Maryland debate is summarized often; e.g.,
http://www.quixote.org/ej/states/maryland
/.

Indiana established…Commission
: Regarding the Indiana study, see Report, p. 198 and pp. 204–5, n.35, and the study itself, “The Application of Indiana's Capital Sentencing Law: Findings of Indiana Criminal Law Study Commission,” available from the Indiana Criminal Justice Institute, One North Capitol, Suite 1000, Indianapolis, IN 46204–2038 [hereafter “Indiana Report”].

committee appointed by the Pennsylvania Supreme Court
: A. Liptak, “Suspension of Executions Is Urged for Pennsylvania,”
New York Times
[National Edition], 3/5/03, p. A15.

constitutional right to have that jury…decide
: The sentencing scheme in Arizona, which allowed a judge to impose a death sentence after a jury verdict, was invalidated in
Ring v. Arizona
, 536 U.S. 584 (2002). The decision seemingly also rendered unconstitutional the systems in Idaho, Nebraska, and Colorado and brought into question the sentencing statutes in Montana, Florida, Alabama, Indiana, and Delaware. Whether
Ring
applies retroactively to the death sentences previously pronounced under those systems has not yet been decided.

federal capital punishment statute is unconstitutional
: Judge William Sessions III declared the federal capital statute unconstitutional on 9/24/02 in
United States v. Fell
, 217 F. Supp. 2d 469 (D.Vt. 2002). For press accounts, see, e.g.,
http://www.usatoday.com/news/nation/2002-09-24-death-penalty-unconstitutional_x.htm
.

execution of the mentally retarded is unconstitutional
: The U.S. Supreme Court prohibited death sentences for the mentally retarded in
Atkins v. Virginia
, 536 U.S. 304 (2002).

four justices…executing murderers…under eighteen…cruel and unusual
: In
In Re Stanford, 537 U.S.—
, 123 S.Ct. 715, 71 U.S.L.W. 3416 (No. 10009, 10/21/02), Justices Stevens, Breyer, Ginsburg, and Souter dissented from the Court's decision not to review the question of whether execution of a person under eighteen was unconstitutional, in light of
Atkins
. Because the case was on collateral review—i.e., not on the direct chain of appeal from the original judgment—four votes could not bring the matter before the Court. But four votes will be sufficient when the question is presented on direct review of the conviction and death sentence of another defendant. Even among the thirty-eight states that permit capital punishment, twenty-one, including Illinois, plus the federal government and the military, prohibit the execution of juveniles under seventeen. See
http://www.deathpenaltyinfo.org/article.php?did-205&scid-27
.

nudged the door wider: Miller-El v. Cockrell
, No. 01–7662 (decided 2/25/03).

raised the bar for a defense lawyer's duty: Wiggins v. Smith
, No. 02-311 (decided 6/26/03). The New York Court of Appeals also overturned that state's first death sentence.
People v. Harris
, 98 N.Y. 2d 452, 779 N.E.2d 705, 749 N.Y.S. 2d 766 (2002);
http://www.courts.state.ny.us/ctapps/decisions/julo2.htm
.

each state…imposed death for a long list of felonies
: For death penalty history, see, e.g., Justice Marshall's concurrence in
Furman v. Georgia
, 408 U.S. 238, 336–42 (1972); “Background and Developments” in
The Death Penalty in America: Current Controversies
, Hugo Adam Bedau, ed. (Oxford University Press, 1997) [hereafter “
The Death Penalty in America
”], pp. 3–25; N. Levi, “Veil of Secrecy: Public Executions,” 55
Federal Communications Law Journal
131 (2002), pp. 131–41.

1966…majority…opposed capital punishment
: In 1966, Gallup reported that 47 percent of Americans were against the death penalty, while 42 percent were for it. The numbers in favor soon climbed, especially after the decision in
Furman
. See J. Jones, “The Death Penalty,” posted on the Gallup Organization's Web site,
http://www.gallup.com/poll/analysis/iao20830.asp
, for a detailed summary of Gallup's findings about public opinion on the death penalty over the years.

Furman v. Georgia
: 408 U.S. 238 (1972).

imposing death, was constitutional after all: Gregg v. Georgia
, 428 U.S. 153 (1976) held that the death penalty is not unconstitutional in every instance in which it is applied.

DNA…showed…innocent people…convicted: The New York Times
puts the number of recent DNA exonerations as 123. T. Simon, “Freedom Row,”
The New York Times Magazine
, 1/25/03, p. 32.

Death Penalty Information Center counted 108 persons
: Summaries of all innocence cases are posted at the Death Penalty Information Center's Web site at
http://www.deathpenaltyinfo.org/innoc.html
.

dozens of additional cases
: The Death Penalty Information Center catalogs cases of probable and possible innocence, in which there has not been a legal outcome impugning the original judgment, at
http://www.deathpenaltyinfo.org/article.php.scid-6&did-111#Released
.