Ultimate Punishment (8 page)

And yet, if you do not execute Henry Brisbon, who in good conscience can be executed? Again and again, the cases that seemed to present the most compelling facts favoring execution proved, under scrutiny, to have elements that raised second thoughts. Kenneth Allen murdered two police officers in 1979, but a portion of his brain had been removed in 1972. He has been in a mental institution for more than two decades. Latasha Pulliam and her boyfriend sexually abused a six-year-old girl with a shoe polish applicator and a hammer, and then strangled her. But Pulliam's death sentence contrasts with the life sentence the boyfriend received; and there is evidence that Pulliam is retarded, which, if sustained, would prohibit her execution anyway. Andrew Johnson committed a gruesome armed robbery and stabbing to earn a death sentence, but his co-defendant, who stabbed another victim and hit a third with a fireplace tool, got forty years.

Frustrated by the impossibility of picking and choosing among cases on any principled basis, Governor Ryan has said he ultimately decided against “playing God.” On Saturday, January 11, at Northwestern's Center for Wrongful Convictions, where Larry Marshall had spearheaded the legal fight that led to the exoneration of so many of those 17, George Ryan commuted the sentences of the 167 persons left on death row. He reduced 3 sentences to 40 years, bringing them into line with what co-defendants in the cases had received. The 164 others were commuted to life in prison without parole.

Given what faced him, I think George Ryan made an understandable choice, even though such men as Henry Brisbon and Hector Sanchez, the killer of Michelle Thompson, now will not die. Lost in the ensuing furor was the fact that in everyday terms nothing had changed for the 164 prisoners commuted to life. They were in the penitentiary the day before their commutation. They would be in the penitentiary the day after. And they would still be in the penitentiary the day they died.

In 1994, as his years on the U.S. Supreme Court were approaching an end, Justice Harry Blackmun expressed his frustrations with the dizzying and persistent inequities of a capital system that, in his view, had defied all the efforts he'd supported over the decades to rationalize it. “From this day forward, I no longer will tinker with the machinery of Death,” Justice Blackmun wrote, in a famous dissent. “The basic question—does the system accurately and consistently determine which defendents ‘deserve' to die?—cannot be answered in the affirmative…”

In commuting all of Illinois' standing death sentences, Governor Ryan quoted Justice Blackmun. He had reached the same point. But unlike Justice Blackmun, Governor Ryan had the one vote that counted.

 

The reaction to Governor Ryan's commutations in many regards defied predictions. A number of prosecutors, police officers, and survivors expressed outrage, but the public mood was far calmer than I, for one, had anticipated. In February, the
St. Louis Post-Dispatch
, a newspaper that serves much of southern Illinois, published poll results showing that Illinoisans were essentially evenly divided about whether the former Governor had done the right thing. Although 55 percent of the poll respondents still favored the death penalty, only 29 percent said they did so “strongly.” Even more impressive to me, given the skittishness I'd encountered among legislators, was this result: 65 percent of those polled said they were not likely to vote against a representative who favored abolition. Clearly, recent history had had a formative impact on opinion in my state.

Furthermore, the fact that roughly half the state agreed with their former Governor suggested that many in Illinois were sympathetic to the argument George Ryan had made in granting clemency, namely, that he had been left with little choice because the legislature had failed to enact any kind of reform. Rather than prompting the backlash I feared, George Ryan's clemencies end up spurring the Illinois General Assembly, now in control of a Democratic majority, at last to make changes in Illinois' death penalty system. In March 2003, a bill to abolish the death penalty actually received a favorable vote from a House committee before dying on the House floor. Yet the withering away of that effort occurred only as both the Illinois House and the Senate passed reform legislation, embodying a number of measures rooted in the Commission's proposals. One bill mandated videotaping interrogations in homicide cases. A second, broader reform measure sponsored by Senators Cullerton and Dillard, among others, passed both houses in late May 2003 and embodied many more of the Commission's most prominent recommendations. The reform bill called for hearings prior to the testimony of in-custody informants in capital cases, pilot programs to test the new lineup procedures the Commission favored, easier access for defendants to DNA testing after trial, and limiting felony-murder to inherently violent felonies. The measure also established procedures that would bar capital punishment if a court found the conviction was based solely on the uncorroborated testimony of an informant, accomplice, or eyewitness. It provided for decertification of law enforcement officers who willfully lie in homicide cases, and established procedures for determining whether a defendant is mentally retarded, presumptively barring capital punishment for those with an IQ of 75 or less.

Naturally, I would have liked even more, especially a state commission to approve death penalty cases, but prosecutors continue to insist that such a measure would be unconstitutional. I was disappointed that the bill still left Illinois with 21 death-eligibility factors. And factual review of guilty verdicts in death cases would remain limited under the new legislation. Trial judges may state their reasons for disagreeing with a death verdict, but not to overturn it; the law, though, would give the Supreme Court the power to set aside any death sentence it deemed “fundamentally unjust.”

Nonetheless, taken as a whole, the measures would constitute important vindication for the work of the Commission and for Governor Ryan and would clearly enhance the quality of capital justice in Illinois. Early in May the new Governor, Rod Blagojevich, promised to sign the videotaping bill. Without making a final commitment, Governor Blagojevich also spoke favorably about the broader reform package when it passed at the end of the month.

Most remarkable to me was the altered political landscape. The omnibus reform bill passed the Illinois House in a vote of 117–0, and the Senate 56–3. Reform notwithstanding, Governor Blagojevich, who had run to succeed George Ryan supporting capital punishment, said, through a spokesman, that he had no intention of lifting the moratorium “anytime soon” and indicated that it might well remain in place throughout his term. Blagojevich has said there will be no executions until he is certain that the innocent can no longer be sent to death row and until there has been further review of “social inequities” that are part of the capital system. His remarks irked a few conservative legislators, but there was no widespread furor. For the time being, the lessons, the labor, and the turmoil of the last few years seem to have left Illinoisans content to see the death chamber continue to gather dust.

W
HEN MATT BETTENHAUSEN
, the Deputy Governor, had first spoken to me about joining the Commission, I said there was one complication: I had already begun work on a novel with capital punishment as its theme. Thinking it through, neither Matt nor I could see why that would pose what lawyers would recognize as a conflict of interest. In the end, though, my commitment to myself was that I wouldn't publish that book until the Commission had made its report to the Governor. I knew that the novel would bring questions from reporters about my views on capital punishment, and I was reluctant to offer any opinions while the Commission's deliberations, which were confidential, were under way.

The book I was working on,
Reversible Errors
, was published in October 2002, six months after the Commission report was issued. I had always said I would never write a novel about Cruz and Hernandez. The experience was too loaded, and I didn't want anyone to think I was exploiting a case I'd taken on for free. More important, it wasn't what I think of as my kind of story. As I saw it then—and see it even today—Cruz and Hernandez is a tale of good guys and bad guys. On one side was the cadre of virtuous defense lawyers, supported by earnest journalists and honest cops, who passed these cases to one another like a torch over more than a decade, convinced of the innocence of these men and working for little or no compensation. On the other side were a number of prosecutors and police officers whose reluctance to admit their errors, for fear of the damage to their own self-esteem or ambitions, drove them to ever graver mistakes.

Goodness in this world is rarely divided so definitively. In the law, especially, things are usually a muddle. Most often, there are well-intentioned people on both sides of a case. Over the years, the actual experiences I'd had began to transform themselves imaginatively, so the new cast of characters I saw in my head appeared without white hats or black. Once that happened, I began to feel the vibration of something I might like to write about.

The plot of
Reversible Errors
draws only superficially on Alex's case. Rommy Gandolph is thirty-three days away from execution for a triple murder when Arthur Raven, a former prosecutor now a corporate lawyer, is unwillingly appointed by the federal appellate court to administer what Arthur regards as the legal equivalent of last rites. In time, though, Arthur discovers that a dying prisoner in the penitentiary where Gandolph is housed is prepared to admit that he, not Gandolph, committed the murders.

Besides Arthur, there are three other main characters. Muriel Wynn, the prosecutor who sent Gandolph to death row, is now about to run for the top prosecutor's job. She is personally ambitious, but also highly capable and earnestly committed to the murder survivors. Along with Larry Starczek, a bright detective who originally investigated the case, Muriel regards the new deathbed confession as the usual jailhouse hokum. Gillian Sullivan, a disgraced former judge who sentenced Gandolph to death, has now only recently been released herself from the penitentiary where she had been sent for taking bribes; she finds Gandolph's case oddly symbolic of the mistakes in her own life. As their creator, I felt a divine love for all of these characters, which included an appreciation of their foibles and their heroic aspects.

When I started
Reversible Errors
in 1999, I'd had one point of departure imaginatively: the intense passions these cases always roil up for all the participants in the legal proceedings. At the core was my recollection of the anger and the burden I experienced in representing someone facing an unjust sentence, and the contrasting sense of high purpose I'd felt when I was a prosecutor. Early on in the book, the novel recounts Arthur's reflections about the world of criminal law and capital prosecutions, which the court's appointment has forced him to reenter:

When I wrote that paragraph, relatively early in the scattered process in which I work toward a first draft, I knew I'd expressed the novel's central vision. But I would have been hard pressed to articulate more. Writing, for me, when it's best, is conducted at remove from my cerebral life. The moment when I first truly believed I was destined to become an author occurred in my junior year of college when I climbed out of a fever bed and in twelve hours wrote a solid draft of a short story I later published. Writing in the grip of emotion, attempting to assign words to onrushing feeling, remains the central experience for me. In the initial stages, I seldom reflect at great length on the meanings of the action I envision. I strive to create a coherent imagined world. If that emerges, there will be a wholeness in the novel in which significance is implicit. Generally speaking, I think fiction seeks to reflect the ambiguity and contradictions in experience, not some slogan or message. If there were a shorter way to fully express what the story does, there would be no point in telling it.

Certainly, I did not want to write a dogmatic book about the death penalty, because, as I have confessed at length here, my feelings about capital punishment were anything but firm. I wanted only to portray the maelstrom of emotions that swirls within each of the warring contenders on the legal battlefield.

As a result, there was a strange companionship between my lawyerly work on the Commission—reading learned papers and court cases, writing reports and framing rules—and the emotionally engrossing but less analytical work on the novel. For the most part, I was convinced that the two enterprises did not intersect. And as a result, I was not conscious of exactly what the imaginative living-through with my characters of Rommy Gandolph's case was contributing to my reflections about capital punishment.

In retrospect, though, I think I was settling on some insights that would contribute to my ultimate conclusions. Reason, in my novel, battles not only the strong emotions provoked by a horrendous crime but also the giddiest impulse—love. In fact, many readers and reviewers commented that
Reversible Errors
is more a love story than a tale of courtroom proceedings. Arthur, Rommy's lawyer, and Gillian, once Rommy's judge, end up an item, as Larry, the detective, and Muriel, the prosecutor, were a decade before. The complications between men and women are hardly a new theme for me—or for the novel. But, as is my custom, I did not reflect at length on why the book makes such a dogged contrast between the legal case that consumes these characters and their desperate pursuit of emotional connection in their personal lives. Now that the novel is behind me, the point seems relatively clear.

In confronting murder, we as a society ask how we should face an ultimate evil, which, if unchecked, would reduce almost all human interaction to war. We want to punish in order to prevent murder, but also as part of our effort to restore ourselves from the anxieties it raises about our ability to live with one another. I have always suspected that what we want most from punishment, beginning with the moments when we first hit someone back as young children, is restoration. The pain will leave us and go instead into the person we hurt. Given that, I have occasionally wondered as I've listened to the surviving family of murder victims if, in some shadowed place in their heart, is the hope that the death of the killer will somehow restore their lost loved one to life.

Even to state all of these goals is to recognize their impossibility. The legal process will never fully heal us. The failure of the law to deliver all that we ask from it is probably the essential theme of all of my novels, and even of the one earlier nonfiction book I wrote about being a law student. I revere the enterprise of the law, but it does not function flawlessly. It neither finds the truth nor dispenses justice with the reliability it is obliged to claim. The law's sharp-edged rules never cut through the murk of moral ambiguity, nor do they fully comprehend or address the complexities of human motivation and intention. And just punishment alone does not render the world one we want to live in.

Murder takes us to the Land's End of the law. Our horror and revulsion undermine our capacity to reason—and prove that justice alone will not make us whole. Only the attachments we have to each other, the antipodal experience of what goes on in the moment a murderer kills, can accomplish that. In the face of the cruelties we visit upon one another, murder being the gravest wrong among them, a sense of meaning and connection must come from outside the law.