The Jan. 6 issue of the New Yorker has an article by author and former federal prosecutor Scott Turow titled To Kill or Not to Kill: Coming to Terms with Capital Punishment.

Turow served on Illinois Governor Ryan's Commission on Capital Punishment, formed after Ryan declared a moratorium on the death penalty in January, 2000. The purpose of the commission was to study what went wrong in Illinois and to make specific recommendations about how to fix the state's broken death penalty system. The Commission issued this report, containing 85 specific recommendations. Not one has been adopted by the Illinois legislature, prompting Governor Ryan to consider blanket clemency for all on death row, a decision he is still contemplating in his final weeks of office.

First, Turow explains who served on this Commission: Two sitting prosecutors; two sitting public defenders; a former Chief Judge of the Federal District Court; a former U.S. senator; three women; four members of racial minorities; prominent Democrats and Republicans. Twelve of us were lawyers, nine with experience as defense attorneys and eleven—including William Martin, who won a capital conviction against the mass murderer Richard Speck, in 1967—with prosecutorial backgrounds."

Turow recounts that at the press conference announcing the Commission, the members were asked whether any of them opposed capital punishment. Four people raised their hands, Turow's was not among them.

Turow did not confront the death penalty as a federal prosecutor because during the years he served in that capacity, there was no federal death penalty. It had been declared unconstitutional by the Supreme Court in 1972 and was not re-enacted until 1988, by which time Turow was in private practice.

In 1991, having already published two novels and not hurting for money, Turow could afford to take pro-bono cases, and he did--including an ugly death penalty case.

In February, 1983, a ten-year-old girl, Jeanine Nicarico, was abducted from her home in a suburb of Chicago, in DuPage County. Two days later, Jeanine's corpse, clad only in a nightshirt, was found by hikers in a nearby nature preserve. She had been blindfolded, sexually assaulted several times, and then killed by repeated blows to the head.

In 1991, Turow took on the appeal of Alex Hernandez, who had been convicted of the Jeanine Nicarico's murder, along with Rolando Cruz and Stephen Buckley. The investigation into the murder had gone nowhere for over a year, and then, just days before a politically charged election, the three were arrested and charged with the girl's murder. The incumbent in the race lost the election anyway, to a local lawyer named Jim Ryan. You've probably heard of him by now because he has been the Attorney General of Illinois for the past several years and just ran for Illinois Governor and lost. He was also the prosecutor in the third and final trial of Hernandez and Cruz.

Turow reviews the case history, which includes convictions of Cruz and Hernandez, reversals on appeals, retrials and again, convictions. (The state dropped the case against the third defendant.) There was no physical evidence linking Cruz or Hernandez to the crimes. Another rapist named Dugan had confessed to the murder but was disregarded by the prosecutors. Turow entered the case for Hernandez after reading the transcripts, reviewing the evidence and becoming convinced Hernandez was innocent. He won the second appeal for Hernandez, but that wasn't the end of it. Even after Cruz's and Hernandez's second convictions were overturned in the separate appeals that Larry Marshall and I argued, and notwithstanding a series of DNA tests that excluded Cruz and Hernandez as Jeanine Nicarico's sexual assailant, while pointing directly at Dugan, the prosecutors pursued the cases. It was only after Cruz was acquitted in a third trial, late in 1995, that both men were finally freed." That still wasn't the end of the case.

A special grand jury was convened after Cruz and Hernandez were freed. Three former prosecutors and four DuPage County police officers were indicted on various counts, including conspiring to obstruct justice. They were tried and—as is often the case when lawenforcement officers are charged with overzealous execution of their duties—acquitted...

Despite DNA tests linking Dugan to the murder, he has never been charged.

Turow uses this case and others as a springboard to discussing the pros and cons of the death penalty, his own turmoil and going back and forth on the issue and why he ultimately concluded, after two years of serving on the Commission, that despite those cases in which it might be appropriate, Illiniois should not have a death penalty.

Turow makes a compelling case, and we encourage you to take the time to read the whole article.

(Link via Hamster.)

Even we couldn't make this up...and it comes from the New York Times, not the National Enquirer.

"When Lawrence Jacobs walked into the courtroom a few weeks ago, he couldn't believe his eyes. There was a noose swinging from the prosecutor's chest. Mr. Jacobs's son is being tried on capital murder charges. The noose was on a necktie." "Then he saw it again. This time two prosecutors were wearing ghoulish ties, one with a dangling rope, the other with an image of the Grim Reaper. "That's when it really hit me," Mr. Jacobs said. "These guys are out to kill my son. And they're making light of it."

The prosecutors said the ties were jokes. Their boss was not amused but took no disciplinary action--just told them to stop wearing them.

"Defense lawyers say the neckties are simply the latest proof of a racially tinged, bloodthirsty culture at the Jefferson district attorney's office, which has put more people on Louisiana's death row in recent years than any other parish."

Until recently, the proseutors handed out plaques decorated with hypodermic needles to comemmorate each execution by lethal injection. This proseuctorial disease is not limited to Jefferson Parish.

In East Baton Rouge, 75 miles away, the district attorney celebrates death sentences with office parties, replete with steak and Jim Beam.

In Texas, one district attorney formed a "Silver Needle Society" while another one hung a noose over her office door.

In Mississippi, a former assistant attorney general had a toy electric chair on his desk that buzzed.

If we have to have a draft, forget the youth--let's make these southern prosecutors go first.

There is a fascinating, long article in the Sunday New York Times on how the jury in the trial of the alleged Al Qaeda members and associates of Osama bin Laden charged with committing the American Embassy bombings in 1998 in East Africa deadlocked on the death penalty decision for both men for whom the government had sought execution.

It may be the most detailed recounting of a jury deliberation process in a death case we've seen. And it is one filled with numerous questionable actions by the jurors. One looked up a complex legal issue on the internet. Two discussed the death penalty with their pastors during the trial. Another was purportedly anti-death penalty from the start but somehow made it through the jury selection process.

The six month long trial took place in Manhattan in 2001, with the deliberations ending just two months before September 11. The jurors deadlocked twice on the death penalty issue, with a final vote of 9 to 3 for death. In federal criminal trials, death sentences must be unanimous. Also, death penalty opponents are not allowed to serve on capital juries--jurors are questioned in detail about their death penalty views during jury selection, a process referred to as "death qualifying the jury"-- and only those who are at least open to the possibility of voting for a death sentence are allowed to serve.

Here's a quote from the article:

Interviews with the jurors now show that two of them, concerned about the religious implications of voting for execution, violated the judge's directive by consulting their local pastors during deliberations. Another juror confused the court during jury selection about his willingness to impose a death sentence, and from the early stages of the trial had ruled it out. In the end, his adamant refusal to consider death helped lead to the deadlocks on execution.

Yet another juror said that he was afraid throughout the trial of possible retaliation by Islamic terrorists, and that he, as the lone Jew on the panel, felt especially vulnerable. "Maybe I'm overly fearful," the juror said of his experience, "but these are crazy times we live in." The juror was one of three to vote against the death penalty in both instances.

The details of the jury's deliberations are the result of extensive interviews done over the last year with 9 of the 12 anonymous jurors. All nine spoke on the condition that their anonymity be preserved, and some provided copies of notes they wrote at home.

The revelations about the jury's actions, previously known only among the 12 men and women themselves, come at a moment of intense debate about whether trials in civilian courts are appropriate for deciding the fates of accused terrorists. The Bush administration has argued that military tribunals are a better way to try some international terrorists and to more successfully win death penalties. One administration concern involves a problem that appears to have surfaced in the bombings trial: in terror cases, jurors might feel vulnerable to reprisal, and such fears could influence their actions.

But there is also broader interest in the performance of death penalty juries — the nature of the discussion, the role of personal belief — in part because there have been so many examples of men and women being wrongly convicted, including some who were facing execution. Recently, a judge in Houston said he would allow public television to film deliberations in a death penalty case.

In interviews, some lawyers for the convicted men, while grateful that the lives of their clients were finally spared, said they were troubled to learn that jurors had sought outside advice. All four men are appealing their convictions, but whether the disclosures about the jury's conduct could play a role in those appeals is unclear, the lawyers said. (Both jurors who sought spiritual guidance voted for death.)

....It is impossible to say how unusual the conduct of the bombings jury was. Most accounts of jury deliberations remain secret, or at least untold. And accounts of some juries, often told by jurors themselves, have shown that the process of reaching verdicts can be imperfect, even disturbing.

There's so much more, often told in the voice of the jurors. Really a good read, no matter which side of the death penalty aisle you might be on.

Outgoing Illinois Governor George Ryan met with the families of 45 death row inmates, providing them an opportunity to tell him why their loved one's death sentences should be commuted to life in prison.

"In a private, emotional meeting in a Near South Side Chicago church, family members of 45 Death Row inmates one by one asked Gov. George Ryan to commute the sentences of their children, siblings and parents."

"How do you look a mother in the eye, especially when the system is broken?" the governor said Friday outside Old St. Mary's Catholic Church. "I have to wonder if he's really guilty."

He was there "strictly to listen," the governor said, before deciding whether to commute any of the 142 death sentences to life in prison without.

We received this joint press release today from the National Coalition to Abolish the Death Penalty ( NCADP) and Mississippians for Alternatives to the Death Penalty :

Ron Chris Foster could become the seventh consecutive African American juvenile offender to be executed if his death sentence is carried out as scheduled on Jan. 8 by the state of Mississippi.
The last six juvenile offenders executed all have been African American. Although African Americans are disproportionately represented on death rows overall, the racial disparity among juvenile offenders on death row is even more pronounced -- two thirds of the approximately 80 juvenile offenders on death row throughout the United States are people of color.

"Mississippi needs to stop and study how race affects its criminal justice system in general and its death penalty convictions in particular," said Ken McGill, executive director of Mississipians for Alternatives to the Death Penalty. "The crime for which Chris was convicted was bad. However, given the circumstances of the crime, it is difficult to imagine that a white person would have received a death sentence."

Foster was convicted and sentenced to death for the murder of George Shelton, a convenience store clerk, in Lowndes County. Although 17-year-old Foster had told a friend he planned to rob the store, he did not take a weapon with him when he did so. Shelton was shot with his own gun after the two struggled.

Steven W. Hawkins, executive director of the National Coalition to Abolish the Death Penalty, said Foster never should have been tried for a capital offense. "He did not have a weapon with him, and there is absolutely no reason to believe he intended to kill anyone," Hawkins said. "In addition, the very fact of his youth and his background dramatically lessen his culpability."

McGill and Hawkins called upon Mississippi Gov. Ronnie Musgrove to commute Foster's sentence. "This case cries out for commutation," McGill said. "The death penalty is supposed to be reserved for 'the worst of the worst' of crimes. This crime, while tragic, does not qualify."

Foster's execution, if allowed to proceed, could be the last in the United States involving a juvenile offender, Hawkins predicted. "We expect a number of states to move this year to ban the execution of juvenile offenders," he said. "Should that occur, it is more likely than ever before that the U.S. Supreme Court will agree to revisit this issue. The United States joins Iran and Congo as the only nations that currently execute juvenile offenders. It is time to halt this barbaric practice."

For more information on Ron Chris Foster, his crime and his life, including why clemency is appropriate, go here.

Here's how you can help: Please write Gov. Ronnie Musgrove and request a commutation of Foster’s sentence. Such executive action would not only encourage the U.S. Supreme Court to join the rest of the civilized world by banning juvenile executions in the future, it would also save this young man’s life. Click the "more" button for addresses and details:

Outgoing Illinois Governor George Ryan will be nominated for a Nobel Peace Prize. We're thrilled. For the other side and some major grumps about it, see Archpundit and Bloviator.

Ryan was nominated for his "crusade against what is clearly a racist and class-based death penalty system here in Illinois" by Francis Boyle, a professor of international law at the University of Illinois law school in Champaign. Since Illinois resumed capital punishment in 1977, 12 people have been executed and 13 other death sentences were overturned. In the 13 cases, evidence showed some of the defendants were innocent; in others, courts ruled that they received unfair trials. Ryan declared a moratorium in 2000 and appointed a commission to study the system, report on what went wrong and make recommendations to restore fairness to the system.

We agree with Boyle that the the "licenses-for-bribes scandal" in Ryan's former secretary of state's office is irrelevant. According to the Nobel Prize website, the prize is awarded to "those who, during the preceding year, "shall have conferred the greatest benefit on mankind." Law professors are among those who can submit nominations.

Boyle and others who favor Ryan as a Nobel Peace Prize candidate have organized a campaign, including a web site which details the national and international support for Ryan's nomination. For example, this comes from Sissel Egeland in Norway:

"The moratorium has inspired Americans to end the inhuman death penalty system and to join the rest of the world in the care for human rights and justice. A nomination of Governor Ryan for the Nobel Peace Prize will send an important message to the international society that the use of the death penalty shall now be ancient history and unite Europeans and courageous Americans to stand up for ethics and human rights in all international relations."

Professor Boyle noted in the news article above that the "Nobel Peace Prizes generally are given to send a message to a target audience," Boyle said. "We think that giving the Nobel Peace Prize to Governor Ryan would send a very strong message here to the United States of America that the death penalty has to go." We agree.

Regardless of your views about the death penalty, surely we can all agree that its imposition should be fair, just and accurate. It isn't. It isn't fair--it is often imposed in a racially disparate manner or after trials at which unreliable evidence such as false confessions and erroneous eyewitness evidence was presented or at which defendants were represented by grossly incompetent lawyers who failed to protect their rights and secure them a fair trial. It isn't just--we still allow the excecution of the mentally ill and juvenile offenders. It isn't accurate--Since 1973, when the death penalty was reinstated, and August of 2002, 102 inmates in 25 states have been exonerated and released from death row. The average time between being sentenced to death and exoneration has been 8 years.

Fixing the broken death penalty system in the United States (not just Illinois) requires a nationwide commitment. The Innocence Protection Act is a good beginning, but despite over 250 bipartisan sponsors in Congress, a few ultra-right wing Republicans are holding it hostage and refusing to allow its passage.

The findings of the Illinois commission on Capital Punishment, initiated by Governor Ryan in response to the glaring inaccuracies in that state's capital punishment system, provide a well-researched guide for reforms. You can read the report and its 85 proposed recommendations here. The Illinois state legislature has adopted none of the reforms. Blanket clemency is the only fair result. Don't blame the inmates, blame the legislature for refusing to fix a broken system that results in innocent people being sent to death row.

George Ryan is a courageous hero--those who cynically accuse him of grandstanding on the innocence issue to deflect from the license scandal occurring on his watch most likely never have heard him speak in person. We have. We believe his commitment to fixing the broken system in Illinois is genuine and heartfelt--it has altered his life and his beliefs. Remember, Ryan supports the death penalty. His crusade is to make it fairer in its application and to protect the innocent. We doubt Ryan will grant clemency (life sentences) to all on death row in Illinois. We think he should. But even if he only grants clemency to some, he will still have done more for humanity and more in spreading the message this year than anyone else.

For more on the work of the Illinois Commission, we recommend this article by one of its participants. For reasons why blanket clemency would be legally sound, read this letter written by 438 legal scholars.

As Rob Warden, Director of the Center on Wrongful Convictions at Northwestern University said not long ago, "On trial are not just the people convicted of the murders, but the criminal justice system itself. Beyond the question of guilt or innocence, of course, is the question of proportionality and fairness of the sentencing process."

There will be a Press Conference at the Illinois State Capitol Press Room on Monday, January 6, 2003, at 1 P.M. to announce the Nobel Peace Prize Nomination and Campaign for Governor Ryan. Springfield is the Capital of the State of Illinois.

This is our final post for the year--we wanted to end on an optimistic note, and we just came across the article below. Have a safe and happy holiday, we'll be back on a normal blogging schedule January 1.

428 legal scholars wrote a 3-1/2-page letter to outgoing Illinois Governor George Ryan today, saying there is legal precedent to defend him if he decides to commute the death sentences of all 157 inmates on death row in Illinois to life in prison.

"The purpose of the letter is to express a legal opinion that if the governor follows his conscience, and if his conscience tells him that large-scale commutation or commutation of all [157] guys in Illinois is appropriate, that he would be acting legally and within the vein of American legal tradition."

Presidents Thomas Jefferson, Abraham Lincoln and Jimmy Carter, among others, granted blanket clemency for people convicted of various offenses.

"The clemency power traditionally has been used not only to correct injustices in individual cases but also as a response to problems in the systemic application of law,'' the letter states.

Action Alert from the National Coalition Against the Death Penalty ( NCADP):

NCADP URGES CLEMENCY CAMPAIGN FOR OKLAHOMA MAN SET FOR EXECUTION

GOVERNOR IS IGNORING QUESTION OF INNOCENCE; BOARD VOTED UNANIMOUSLY FOR COMMUTATION

Dec. 16, 2002 - The National Coalition to Abolish the Death Penalty is urging its members to contact the office of Oklahoma Gov. Frank Keating and ask him to change his mind and grant clemency for an Oklahoma man scheduled for execution Tuesday evening.

Ernest Carter was convicted in the 1990 robbery-murder of Eugene Manowski. Carter's defense attorney has argued that despite the conviction, his client was not guilty of the crime beyond a moral certainty. The Oklahoma Board of Pardons ands agrees with this assessment, and unanimously voted to recommend that Gov. Frank Keating commute Carter's sentence to life in prison without. On Sunday, Gov. Keating indicated he will not comply with the board's recommendation.

"Executive clemency exists as the final safeguard to prevent an innocent person from being executed," said Steven W. Hawkins, NCADP executive director. "In a speech last year at the National Press Club, Governor Keating himself said that although he favors the death penalty, the state must not execute anyone unless there is a 'moral certainty' that that person is guilty. In this case, the threshold of 'moral certainty' simply has not been met."

Since Gov. Keating took office in 1995, the Oklahoma Board of Pardons ands has recommended clemency for four people on death row. Gov. Keating has accepted only one of those recommendations. This is despite the fact that nationwide, at least 102 people have been freed from death row due to actual innocence, including seven people from Oklahoma. Oklahoma is tied with Texas for third place in the number of innocent people exonerated, behind Florida and Illinois.

"In the past quarter century, Oklahoma has executed 54 people and seen seven people walk off of death row due to actual innocence," Hawkins said. "This is a clearly unacceptable margin of error. Oklahoma's death penalty cases simply are not receiving the level of scrutiny necessary to prevent the ultimate, unacceptable miscarriage of justice from occurring - the execution of a person who is quite possibly innocent. Governor Keating must step in immediately and commute Mr. Carter's sentence."

NCADP is urging its members to contact Gov. Keating's office and let their views be heard. Phone number is 405-521-2342; fax is 405-521-3353. Gov. Keating's
email address is governor@gov.state.ok.us

The execution is scheduled for 6 p.m. CST Tuesday, Dec. 17.

The Associated Press reports that the number of inmates sentenced to death for their crimes fell sharply in 2001:

"A total of 155 inmates in the United States received a death sentence in 2001, the smallest number in 28 years, according to a Justice Department report released on Sunday. The third straight annual decline occurred at a time of growing national debate about capital punishment, sparked in part by recent exonerations of death-row inmates because of DNA evidence and calls for more state moratoriums on executions."

"The report by the department's Bureau of Justice Statistics found a steady decline in the number of inmates who received a death sentence, with 304 in 1998, 282 in 1999 and 229 in 2000."

"The number put on death row last year represented the lowest figure since the 1973 total of 44 inmates."

Oklahoma executed the most people in 2001, with 18, followed by 17 put to death in Texas and seven in Missouri. Preliminary statistics for this year show that Texas conducted 33 of the 68 executions nationwide.

Other statistics from the report:

Three states housed 40 percent of all death row inmates at the end of 2001: California, with 603; Texas, 453; and Florida, 372. New Hampshire was the only capital punishment state with no one on death row.

The youngest person on death row in 2001 was 19, the oldest 86.

Some states still authorize, in certain circumstances, electrocution, use of gas, hanging and -- in Idaho, Oklahoma and Utah -- death by firing squad.

Ninety people had their death sentences removed or overturned by the courts in 2001, with Florida leading the way with 11. Of the 90, 46 inmates now are serving life sentences, and most of the others were awaiting new trials or sentencing hearings.

Seven inmates had death sentences commuted. Nineteen death row inmates died while awaiting execution.

Death Penalty foes gathered today in Chicago "to draw attention to flaws in the administration of capital punishment and encourage one of the anti-death penalty movement's darlings, Gov. George Ryan."

"Ryan, who in 2000 imposed a moratorium on executions in Illinois, is considering the clemency petitions of more than 140 death row inmates. Forty former death row inmates from around the country spoke briefly about their cases at the Center on Wrongful Convictions at Northwestern University's law school. Two of the inmates read a letter asking Ryan to grant clemency to all 160 prisoners on death row in Illinois."

"Center director Lawrence Marshall also asked for a blanket clemency, saying Ryan "holds the fate of 160 men and women in his hands." "How do we tell the mother of a death row inmate that we have to kill your son even though we know the system is wrong ... to bring closure to other people?" Marshall asked."

Ryan leaves office in a month. Retired judges have written him , asking him to grant clemency to any death row inmate impacted by the unfair system in Illinois. Families of the victims want him to deny clemency.

We doubt Ryan will grant blanket clemency to all on Death Row, as he has said he will not. Instead, he has said he will take a hard look at each case individually. We would prefer a blanket commutation. As the New York Times opined a few months ago:

"Governor Ryan, who has made fairness in administering the death penalty a hallmark of his governorship, will end his tenure on a high note if he takes one last stand for justice and issues a blanket commutation."

We hope he at least takes the retired judges' advice, and commutes the death sentence to one of life without for any death row prisoner who didn't get a fair trial or sentencing hearing, is retarded, was a juvenile at the time of the offense, was a minor player in the offense, or may be factually innocent of the crime.

Ryan has faced political pressure on the issue before and has always chosen to stand up for what he knows is right. We don't expect any less of him this time.

Is Death Different?

"An en banc 9th U.S. Circuit Court of Appeals was faced Tuesday with deciding whether a recent U.S. Supreme Court case could help potentially hundreds of death row inmates get new sentencing hearings. The 9th Circuit struggled with whether the high court's Ring v. Arizona decision -- which held that juries, and not judges, must decide the aggravating factors leading to a sentence of death -- is a structural or procedural change."

If the change announced in Ring is structural, the defendant will likely get a new hearing. But if the appeals court determines that the ruling is procedural only, he and the death row inmates in other states within the 9th Circuit (Montana, Idaho and Arizona) will likely be denied relief.

As Judge Stephen Reinhardt asked during the argument, "It's not a structural error not to have a jury when you're supposed to?" What would be a structural error if not having a jury is not a structural error? The only other thing I can think of is not having a lawyer or not having a judge."

"...Judge Kim Wardlaw, asked if the fact that this was a case involving life or death made it different from others, where the change might be seen as merely procedural."

Add those questions to the Supreme Court's previous holdings that death is different, and we think the Circuit should decide the change is structural and order new sentencing hearings.

The 9th Circuit is the first to consider this issue since the Supreme Court's ruling in the Ring case. The case is Summerlin v. Stewart, 98-99002.

In response to Tuesday's ruling by the U.S. Circuit Court of Appeals for the Second Circuit, which overturned U.S. District Judge Jed Rakoff's July decision holding the federal death penalty unconstitutional due to errors in the system that have resulted in more than 100 wrongful death penalty convictions, Lawrence Goldman, president of the National Association of Criminal Defense Lawyers, said that the Supreme Court should show courage and address the reversal of the Rakoff death penalty decision:

"The Second Circuit feels bound by precedent, but Judge Rakoff instead felt bound by the reality that innocent people will die under the current system."

"Across the country, 102 persons sentenced to death have been freed, many on incontrovertible scientific evidence of their innocence. Judge Rakoff's courageous decision recognized that there is more to go on now than in previous challenges: that the newly discovered evidence behind the spate of recent exonerations now proves that the killing of innocent persons by our flawed death penalty machine is inevitable. He was not wrong in concluding that these flaws amount to a violation of due process."

"Several Justices have shown concern for the same issues that led Judge Rakoff to reach his conclusions. We hope the Supreme Court will take this case and address these concerns as soon as possible. Innocent lives hang in the balance."

"NACDL is the preeminent organization in the United States advancing the mission of the nation's criminal defense lawyers to ensure justice and due process for persons accused of crime or other misconduct. A professional bar association founded in 1958, NACDL's more than 10,000 direct members -- and 80 state and local affiliate organizations with another 28,000 members -- include private criminal defense lawyers, public defenders, active U.S. military defense counsel, law professors and judges committed to preserving fairness within America's criminal justice system."

For an analysis of the opinion, go here. You can access the opinion directly here.

Update: Long Story, Short Pier has some comments critical of the reversal.