On November 16, 2000, the Illinois Supreme Court issued two more reversals in death penalty cases. The court overturned the conviction and death sentence of Cecil Sutherland and the death sentence of Hector Nieves.
In Sutherland’s case, the court ruled that his lawyer failed to present compelling evidence that would have cast doubt on his guilt. The court ruled 6 to 1 to overturn the conviction and sentence, saying that his defense lawyer had caused him “substantial prejudice” and because the prosecutor improperly misstated the significance of some of its evidence during arguments to the jury.
Sutherland had been convicted in 1989 of kidnapping, rape, and murder in the death of ten-year-old Amy Schulz, whose body was found in a ditch near Dix, Illinois, a few miles from where Sutherland lived and about eighty miles east of St. Louis, Missouri. The prosecution’s case relied heavily on tire tracks and boot prints found near the girl’s body. The prosecution said its experts concluded the impressions matched Sutherland’s car and boots at the time of his arrest. However, the Supreme Court noted that there was evidence that Sutherland had purchased his boots and changed his tires after the girl was killed, but the defense attorney never presented it.
Nieves had been convicted in Chicago in the 1992 murder of Louis Vargas in the Humboldt Park neighborhood. While the court upheld Nieves’s conviction, it ordered that Nieves be resentenced and that a death sentence was off the table. The trial judge who had imposed death had considered evidence that should have been excluded at the time of sentencing, the court concluded.
These decisions meant that 135 Illinois death penalty convictions or death sentences had been reversed—more than half.
Two days later, I was attending a conference in San Francisco to receive an outstanding public service award. The conference, “Committing to Conscience: Building a Unified Strategy to End the Death Penalty,” was at that time one of the largest antideath penalty conferences ever to be assembled. It was the first time that a broad array of antideath penalty groups convened jointly.
The dignitaries included Sister Helen Prejean, whose personal story inspired the movie Dead Man Walking; Mike Farrell, an actor (M*A*S*H) and president of Death Penalty Focus in California; US senator Russell Feingold from Wisconsin, who introduced legislation to abolish the federal death penalty; and officials from groups such as the National Coalition to Abolish the Death Penalty, Amnesty International USA, and Citizens United for Alternatives to the Death Penalty. Other groups included the American Civil Liberties Union, American Friends Service Committee, Murder Victims’ Families for Reconciliation, and Journey of Hope.
I also met Bud Welch, whose daughter, Julie Marie, was killed in the 1995 Oklahoma City bombing committed by Timothy McVeigh and Terry Nichols. Welch had been opposed to the death penalty, but in the aftermath of what was then the worst act of domestic terrorism in US history, for a time he was so angry at McVeigh that all he wanted was to be put in a room alone with him. That lasted about six months and then Welch returned to his abolitionist view. Ultimately, he forgave McVeigh before he was executed.
I met with some of the Italians who were opposed to the death penalty who had come to Chicago and who I would later meet in Italy. Although Italy had no death penalty, they were studying the criminal justice system. They would ultimately meet with United Nations secretary-general Kofi Annan to present an international petition containing more than three million signatures calling for an international moratorium on the death penalty.
It was heady company and I received a lot of encouragement from these antideath penalty advocates. To each and every person, I maintained my position—I was awaiting the conclusions of the Death Penalty Moratorium Commission before I made any decisions.
I was honored at Northwestern University Law School’s Center on Wrongful Convictions, founded by Larry Marshall and Rob Warden, and gave a speech that went just a little further than others from the past. And I voiced a thought that was increasing in volume in my head as I talked about my lifelong support for the death penalty.
“I was part of that great body of Americans who saw a nation in the grip of rising crime rates, inner cities becoming armed camps and ever-growing violence in our streets, our schools, and even our places of worship,” I said. “Tough sentences, longer prison terms, more jail, and strict imposition of the death penalty. During the debate on the death penalty, those of us who supported the death penalty, we were asked by those who opposed it, who would be willing to throw the switch? Would you be willing to throw the switch? It was a sobering question, and I wish now that I could swallow the words of unqualified support for the death penalty that I offered.”
I praised the Chicago Tribune reporters whose work had shaped my thinking and decision to impose the moratorium. “Your reporting and columns crystalized my thinking,” I said. “One of the highest callings in journalism is to save the life of an innocent person on death row. You have achieved that and you are to be commended.”
Later, in talking about the moratorium, I went off my prepared remarks.
“I’m not only concerned about the death penalty, but I’m concerned about the whole criminal code we have here in Illinois,” I said. “There is, without question, a lot of people sitting in prison today that didn’t commit the crimes they are there for. They may not be facing the death penalty, but we’ve shortened their lives by putting them in prison for a crime they didn’t commit.”
This really was the most damning thing I had said to date about the criminal justice system in Illinois because it went beyond just death penalty cases. My education, if you want to call it that, had been continuing and my eyes were really starting to open up. Afterward, when a reporter asked me how widespread the problem of mistakes in the criminal system was, I said, “Frankly, I think it’s pretty bad.”
By the end of November, the Illinois Supreme Court had upheld the convictions and death sentences in five more cases, putting five more prisoners a step closer to execution should the moratorium be lifted.
The death sentence was affirmed for Reginald Chapman, who was convicted of beating his girlfriend to death with a bat and murdering his infant son in 1994 in Alsip, Illinois. He tried to hide the crime by tying weights to their bodies and dumping them in a canal.
The court also upheld the death sentence for William Kirchner, who had been convicted of killing an elderly couple and their adult daughter in 1997 near Decatur, Illinois. The case was somewhat memorable because family members of the victims wrote a letter to the Chicago Tribune in February decrying the moratorium.
“Not all Death Row inmates are innocent,” the family members wrote. “So far, no one in the state of Illinois has been wrongfully executed due to the fact that the appeals process, already in place in our state, does what it is supposed to.
“We challenge Gov. Ryan to support the victims and surviving family members of violent crimes by taking actions other than a moratorium on the death penalty. We feel that spending our tax money to prolong the lives of killers on Death Row is wrong.”
The Supreme Court also upheld the death penalty for Anthony Hall, who was convicted of murdering a kitchen worker at Pontiac Correctional Center. Hall had been sentenced to death but was granted a new sentencing hearing by a federal judge. At the second hearing, Hall was again sentenced to death.
The court also approved a death sentence for David Smith who was convicted in the 1987 rape and murder of a Chicago woman who was babysitting her four-year-old cousin.
And the court also affirmed the death sentence for Anthony Enis, who was condemned for the 1988 murder in Waukegan of Merlinda Entrata, a nurse who was going to testify in an upcoming trial that Enis had raped her.
The first week in December, I found myself, almost unbelievably, at Harvard Law School, delivering a speech to law students. I joined a distinguished list of Speakers who preceded me, including Anita Hill, Supreme Court Justice Stephen Breyer, Reverend Jesse Jackson, Reverend Al Sharpton, Johnny Cochran Jr., and—of particular significance to me—retired Supreme Court justice Harry Blackmun, who had so famously said he would no longer tinker with the machinery of death.
“In my heart, I knew I couldn’t go any further, and that I couldn’t live with myself if I did,” I said. “When it came to the death penalty in Illinois, there was no justice in the justice system.”
I encouraged the students to consider a career as public servants and to do pro bono work if they wind up at a private law firm. “I hope you will remember that the criminal courtroom is not an arena to compete for victory,” I said. “You’ve got an obligation to go out and make sure that there is fairness in the system.”
The very next day, I was in Manhattan addressing the New York City bar association, prompting the Associated Press to publish an article quoting Robert Jones, spokesman for the antideath penalty group, Moratorium 2000, as saying that the Illinois moratorium had re-energized the movement. “I’d say it’s probably been the largest energizing event in the last twenty years,” he said.
The following week the Death Penalty Moratorium Commission held its third public hearing in Springfield, and during the proceedings the commission chairman, former federal judge Frank McGarr said that the commission could possibly recommend eliminating the death penalty.
“Our conclusion, I suppose, could be that we can’t reform the system enough and we should make a recommendation,” Frank McGarr said, but noted that only the legislature could abolish it. “Whether we will ultimately make a recommendation or not, I don’t know. I don’t rule out the possibility.” The commission’s primary focus, he said, was to deal with other issues such as prosecutorial misconduct and inadequate legal defense. Former US senator Paul Simon, a commission vice chairman who had opposed the death penalty for decades, added that he would support “whatever we can do in the way of restricting the imposition of the death penalty and making sure innocent people are not put to death.”
During this third and final hearing, commission member Scott Turow asked parents of murder victims who testified in favor of the death penalty if sentencing the murderers to life in prison without the possibility of parole—a sentence already on the books in Illinois—would satisfy them; bring them peace.
George Hartman, whose twenty-six-year-old son was murdered in 1998 by a man who was convicted of second-degree murder and was scheduled to be released on parole in 2005, said that although he supported the death penalty, he might have accepted a natural life sentence. “If you knew that he was never going to get out . . . I’d have to say, ‘Probably,’” he said.
Commission member Roberto Ramirez noted that when he was eight years old, his own father was murdered and then Ramirez’s grandfather avenged the murder by killing the murderer. “It didn’t bring any closure,” Ramirez said.
At the same time, news was breaking in Florida that DNA testing confirmed the innocence of Frank Lee Smith, who had been sentenced to death for the 1985 rape and murder of an eight-year-old girl. Unfortunately for Smith, he had died of cancer eleven months earlier while still on death row. He had been scheduled to be executed in 1990 but won a stay. Had he not won that stay, Smith would have been an innocent man executed and no one would probably ever have known.
Reporters asked me about the McGarr statement leaving the door open to a recommendation of abolition. I said it was becoming more of an option to consider. “I just think people have come to realize that maybe there could be errors in the execution of people and rather than take the chance, they’re better off putting them in jail without parole,” I said.
The Chicago Tribune did it again just before the end of the year, publishing a report titled “Executions in America.” The newspaper examined three cases where prisoners had been executed: Alvin Moore in Louisiana, Bennie Demps in Florida, and Wilburn Henderson in Arkansas.
“The cases of these men are bound by a common element—all went to their death accompanied by doubts about the evidence against them, while their claims of innocence received scant public attention,” the article said.
By that time, a total of 682 people had been executed since the return of the death penalty in the United States. About 120 were still asserting their innocence as they were wheeled to the death chamber, the newspaper said. These were just three of the cases.
How does this happen? I wondered.
The year was coming to a close. My commission was still working and there was no timetable for their report. Meanwhile, five other states—Indiana, Maryland, North Carolina, Arizona, and Nebraska—had begun reviewing their death penalty systems.
Richard Dieter, director of the nonpartisan Death Penalty Information Center, said, in issuing the center’s annual report, that “the big story this year is the change in the atmosphere of the death penalty.”
Asked why the state would continue with a system that resulted in twelve executions and thirteen exonerations, I said, “Why would we continue with a system like that? I don't think that's okay. People in public service try to do what’s right. You may not get everybody to agree you’ve done the right thing—whether you build a road or whether you tear down a bridge, whether you set policy, whatever you may do. Anybody who serves in an office like the governor’s office tries to do the right thing, what they think is the right thing, based on the counsel they get.”
If I had a New Year’s resolution, it was that it was important to keep delivering a message that I had concluded people needed to hear regarding the death penalty. Too many people were, like I was for many years, ambivalent about it.
How do you get the message across, I wondered, to people who feel that law and order is the first priority and that means the death penalty?
I wondered what they would think if they had to go to bed every night contemplating the possibility that they would be responsible for saying whether someone should live or die.
The more I thought about it, I started to wonder what would happen to the prisoners already on death row if the commission were to recommend abolition. I had told the Tribune in a year-end interview that the commission “may come back and say that everybody who sits on death row is entitled to review based on these rules, based on these recommendations, based on these changes. I would hope that’s what they do. I don’t know why you wouldn’t. If there is some doubt about the system prior to our stopping it, then those folks must have all been convicted based on that system and that system is in question, then I would think that they would all have an opportunity for review.”
Little did I know what was about to unfold.