Sometimes a good history lesson from an unexpected source can be quite revealing. I had been candid all along that my education on the death penalty system had come from a variety of sources—the media, defense lawyers, policy makers, abolitionists, and death penalty supporters and the exonerees themselves.
In the immediate aftermath of the raising of the issue of commutations, I received a most interesting letter from Seymour Simon, a former Illinois Supreme Court justice who, during his tenure on the bench from 1980 to 1988, wrote nearly two hundred majority opinions and authored about 174 dissents. He particularly dissented in death penalty cases, believing that the death penalty was constitutionally defective because it was arbitrarily applied. His letter was an appeal to commute everyone on death row to life in prison without parole.
“I commend you upon your wisdom in imposing a moratorium on executions, and on your willingness and courage to consider which, if any, of the inmates on death row in Illinois should have their death sentences commuted,” he wrote from his office at the Chicago law firm of Piper Marbury Rudnick & Wolf. “The errors evident in the thirteen cases of persons released from Illinois penitentiaries after being on death row for lengthy periods clearly require, at the very least, a reappraisal of the sentence imposed on each individual to determine whether he was properly convicted and sentenced. I respectfully suggest, however, that there is another approach to determining the propriety of carrying out executions imposed under the Illinois death penalty statute which does not require individualized appraisals of the circumstances which brought each person to death row.”
He suggested that I take a look at the “incongruity” of the Illinois Supreme Court decisions dealing with the constitutionality of the death penalty statute—the statute I voted for when I was in the General Assembly. He said that the statute should have been held unconstitutional in 1981 in a case involving a man named Cornelius Lewis. As a pharmacist by trade, I was not experienced in the law. I found former justice Simon’s analysis to be quite interesting.
It began with the case of Ronald Brown.
Cook County Circuit Court judge William Cousins Jr. had presided over the trial of Brown, who was accused of the armed robbery, kidnapping, and murder of Charles McGee on the Southwest Side of Chicago. McGee had been found shot to death in an alley and Brown was seen driving McGee’s car later that day. There really was little doubt that Brown was guilty. The murder weapon, a .22-caliber revolver, was recovered in Brown’s home along with three tires and a citizen’s band radio from McGee’s car. Brown was carrying McGee’s watch, and his fingerprints were found on McGee’s car. When questioned by police, Brown said he and another man, Andre Walker, had robbed McGee and that Walker was the one who shot McGee. With no proof linking Walker to the crime, he was never charged.
Judge Cousins heard the trial without a jury and convicted Brown. After the verdict, the prosecution requested that a jury be empaneled to hear evidence and decide whether—as the state wanted—Brown should be sentenced to death.
Judge Cousins denied that request. He ruled that the section of the death penalty that “vests the prosecution with unlimited discretion to trigger death sentence proceedings” essentially caused the death penalty to be “wantonly and freakishly imposed.” Judge Cousins concluded that the statute contravened the due process clause as well as the prohibition of cruel and unusual punishment by the Eighth Amendment to the US Constitution.
The prosecution appealed Judge Cousin’s ruling and in 1979 the Illinois Supreme Court overturned it by a vote of four to three. The three justices in the minority, Joseph Goldenhersh, Howard Ryan, and William Clark, dissented and said the death penalty was unconstitutional. They wrote that the death sentence could not be imposed fairly and uniformly because of the absence of sufficient standards to guide the 102 Illinois state’s attorneys in deciding whether to request the death sentence. As a result, the three justices said, the determination was left to the discretion of each individual state’s attorney. Brown’s case was remanded back to Cook County for a death penalty hearing and ultimately, he was sentenced to eighty years in prison.
Simon explained that he came onto the Supreme Court in December 1980 after the Brown decision. He replaced Justice Thomas Kluczynski, who had been one of the four justices who supported the death penalty statute in the Brown ruling.
Subsquently, the first death penalty case to reach the court after Simon came onto the bench was the case of Cornelius Lewis, who had been convicted and sentenced to death for fatally shooting a security guard during a 1978 robbery of tellers at the Citizens National Bank in downstate Decatur, Illinois.
Simon, like the three justices who had held the death penalty statute unconstitutional in the Brown case, believed the statute was unconstitutional. And he expected that the Lewis case would be the one that would overturn the statute.
That did not happen. Instead, two of the dissenters said they believed that the Brown decision set a precedent that could not be overturned, notwithstanding the view they had previously expressed that the statute was unconstitutional. The third dissenter said he still believed the statute was unconstitutional, but that he preferred that the US Supreme Court make that decision. Of course, it never did.
Simon noted that in 1984, Justice Ryan—one of the original dissenters—called Simon out in the death penalty case of Charles Albanese, who was sentenced to death for poisoning his father, his mother-in-law, and his wife’s grandmother with arsenic to obtain the family fortune.
“My colleague, Justice Simon, in three capital cases, has emphasized that three members of this court, Justice Clark, Justice Goldenhersh and I, originally dissented from the holding of the majority in [the Brown case], which case upheld the constitutionality of our death penalty statute,” Justice Ryan wrote. “It is, apparently, my colleague’s position that his vote against our death penalty statute, added to that of the three who dissented [in Brown] means that a majority of this court, as now constituted, is now of the opinion that our death penalty statute is not valid.
“In these cases, my colleague has chided the three dissenters . . . for continuing to adhere to the holding of the majority in that case despite our ‘belief that the death penalty statute is unconstitutional,’” Justice Ryan declared. “My colleague errs when he asserts that I now believe that our death penalty statute is unconstitutional. That was my opinion at the time the opinion in [Brown] was adopted. I stated in my dissent the reason for my belief. Four members of this court did not agree with my reasoning and held that the statute was constitutional. I must accept the fact that my opinion was wrong because four members of this court said it was wrong. In reality, the judicial process does not deal in abstract propositions of right and wrong.”
Justice Ryan went on to say that the decision of the majority in the Brown case was “binding not because of the concept that it is right or correct as a proposition of law, but because it is the final statement on that issue made by the highest judicial tribunal that has considered it. That is the nature of the appellate process. That is the manner in which cases and issues are decided. Simply because I dissent in a case does not mean that I must forever insist that I was right and the majority was wrong, or that ‘everyone was out of step except me.’”
Simon wrote in his letter to me, “I was astounded by that simplistic description of the judicial process because I believe that it is the responsibility of the highest judicial authority in a forum to get it right, to do justice, especially in cases involving death sentences or restraints on freedom, and that in cases involving constitutional issues each judge of a reviewing court owes allegiance to the constitution itself rather than the gloss that has been put upon the constitution by the rulings of his predecessors.”
Simon noted that at the time, he replied that Justice Ryan’s statement “implies that ours is a system of footrace justice in which the first opinion entered prevails simply because it is first in time, and not necessarily because it is correct. . . . If a correct constitutional position were rendered forever incorrect merely because four judges once said it was, then our system of justice would not be one of laws, but one of men; not one of principle, but one of chance.”
The idea of chance particularly resonated with me. I had compared the Illinois death penalty system to flipping a coin.
Simon then drove his point home.
“An experience with our judicial system I recommend you consider is that of Girvies Davis. His case reached the Illinois Supreme Court five times. If you were searching for individual death row occupants who were deserving of having their death sentences commuted, he would be a leading candidate were it not for the fact that he has already been executed,” Simon wrote. “I invite your attention to Girvies Davis for two reasons. The first is that unlike other defendants whose exonerations resulted from fortuitous circumstances, Girvies Davis was executed, but his execution, like the exoneration of many of those who were released, happened because of chance.
“It came about in this way: the Illinois Supreme Court reversed a death sentence which had been imposed on Davis and remanded his case for a new death sentencing hearing. Following the remand, the State’s Attorney of St. Clair County, Dick Allen, filed a petition with the Circuit Court requesting a re-sentencing hearing and stating that the State was waiving its request for the death penalty and instead would seek a term of natural life. Before the court acted on the petition, however, Mr. Allen was replaced as State’s Attorney and the new State’s Attorney withdrew Mr. Allen’s petition and instead requested a death penalty hearing for Davis.”
Davis was again sentenced to death and his appeal was denied in 1991—after Simon had left the bench and returned to the private practice of law. The denial was based upon the premise that the chief prosecutor had the discretion to seek the death penalty and that the new state’s attorney therefore was within his rights to do so.
“So long as the initial decision to impose the death sentence is left to the individual ‘prosecutorial discretion’ of Illinois 102 state’s attorneys, death sentences cannot be imposed uniformly and fairly in this state,” wrote Simon. “Aberrations in the imposition of the death sentence between various individuals and various counties will continue in Illinois as they have in the past. I recognize that prosecutorial discretion plays a part in every decision to initiate a prosecution, but when life or death is at stake, uniformity and fairness require clear and strict standards to limit that discretion so that it will not be exercised arbitrarily.
“The absence of such standards in our present statute, together with the simultaneous presence of four Justices on the Illinois Supreme Court who had expressed the opinion that the death penalty was unconstitutional because of the absence of such standards is a compelling reason for you to commute all death sentences to life imprisonment,” Simon declared.
Simon also noted that at the time of the Cornelius Lewis decision, he and the other dissenters objected to the statute’s provision that did not require the prosecution to declare its intent to seek the death penalty until after a conviction. Defendants were put at a disadvantage by not knowing in advance of trial whether death was a possible outcome. This had finally been taken care of just this year, Simon noted, by the Illinois Supreme Court adopting a rule that advance notice to the defense was required.
“This belated action by the Court is justification for commuting the death sentences of all those on death row who did not have the benefit of that rule,” Simon wrote.
He noted, “Some may view it as unseemly to commute all death sentences after twelve persons have already been executed.” He said the best answer was given by former Second Circuit U.S. Court of Appeals judge Jerome Frank, a Chicagoan. Frank, in a ruling in 1956, said that “in criminal actions, where life or liberty is at stake, courts should not adhere to precedents unjust to the accused. It is never too late to mend.”
That last sentence also resonated.
Girvies Davis had been executed in 1995. I discovered that like Anthony Porter, David Protess and his students had examined the Davis case and became convinced he was innocent. However, they had been unable to win his freedom. Protess had written an account of the last conversation with Davis—on the day he was executed—during which Protess and his students were listening as Davis said, “Try not to mourn for me. Move on with your lives. Just try to help people like me who get caught up in the system.”
And then he asked Protess and the students to promise they would work on other death penalty cases.
“Of all the guys you know on the row, who do you think most deserves help?” Protess had asked.
Davis didn’t miss a beat. He said that Dennis Williams was deserving of attention. “I’m certain he’s innocent,” Davis said.
And sure enough, Williams was one of the Ford Heights Four and along with Verneal Jimerson, Kenneth Adams, and Willie Rainge, was exonerated and freed in 1996.
I wondered if Girvies Davis should have been exonerated instead of executed.
Justice Simon had given me much to think about.