MY ORIGINAL IDEA FOR THIS BOOK was to portray a death penalty case from all perspectives—the victim’s family, the defendant, his family, the lawyers on both sides, the detectives who worked the case. I wanted to write about the death penalty when it “worked”—killer caught, tried, convicted—and even thought that, through my research, I might come to understand something essential about murderers. It was 2001 and I was working for Dr. Robert Coles, learning about social documentary writing, which I tried out in a couple of articles about criminal justice issues and politics for the American Prospect magazine, where I also worked as an editor of a policy website.
I wanted to try to understand murderers because my father, US Representative Allard (Al) Lowenstein, was murdered by a mentally ill gunman when I was ten, and though we knew who did it and why, for us, as for most family members of murder victims, there is no “why” that makes sense. You are crushed, sadder than you could’ve imagined surviving, angrier than you could imagine at all, bewildered that something so horrible could happen so quickly and eliminate from the earth someone you love. And every morning you wake up knowing you’re a day further from them, and that that keeps going forever.
If the killer is arrested, you enter the criminal justice system, hoping for some kind of justice. It’s impossible to know then that most likely nothing that comes of the case will help much with your pain, and a lot of what you will have to go through to get any result at all will make you feel worse, because you’re not really part of what happens. You might even find out that prosecutors don’t have time for you, and even if they listen, they can’t make any decisions based on what you say. And it’s very likely that whatever sentence the killer gets isn’t going to be enough for you, even if it’s life in prison and especially if, as happens in many cases, the killer pleads guilty to a lesser offense and gets only a few years. The reality is, so many murders go unsolved, that you’re actually fortunate if, in your loved one’s case, you know who the murderer is. In many cases the body is never even found.1
In my father’s case, the state of New York deemed his killer “not responsible by reason of mental disease or defect” and put him in a high-security hospital for a few years and then began the process of gradually releasing him: furloughs, moving him to a “¾ way” house on the edge of the hospital grounds where he could live for free while working and living in the community. Eventually he was given his entire, unsupervised freedom.
Almost twenty years after my father’s death I spoke out against the death penalty and was involved in two campaigns to prevent its return to Massachusetts. I opposed the death penalty (and still do) not because I feel sorry for murderers or even because I think every human is redeemable; I wish I did, but I don’t. I don’t debate that there are people who “deserve” the death penalty—some people do things so horrible they “deserve” whatever happens to them. But I’m against the death penalty because of what it does to us: wastes our money; infects our justice system with racism, classism, and politics; and, in the end, turns us into killers. To put it on the personal level, the man who killed my father deserves, in my mind, whatever happens to him. But it’s not worth the damage I would inflict on myself and my family to give it to him.
Out of these thoughts emerged the idea to write about the death penalty system when it worked and about the effect this process has on all the people involved in a case. I decided I would chose two death penalty cases at random (so there could be no question of my having picked one to make a point) and write whatever I found out about them. To find random cases, I picked three inmates from a death row pen pal website and wrote to them, explaining my idea and that if they agreed to work with me I would get to see their entire file, would interview as many people involved in the case as possible, and would write what I found to be the truth. Since most of the more than three thousand people on death rows across the country are guilty, I assumed I’d be writing about guilty men.
An inmate from Pennsylvania, Nick Yarris, answered my letter. He wrote that he didn’t want to do the project—he was running out of appeals and didn’t want to fight his case anymore—but he would give my letter to someone who might. (Two years later Yarris was exonerated by DNA evidence and released from death row.)
Shortly after that I received a letter from Walter Ogrod, who wrote that he was innocent. I didn’t believe him, but since my rule was to follow the case of whoever wrote to me, I did just that. Soon, I began to think he might be telling the truth. That was in 2001, and I’ve been on the case since.
In the interim, I published an article about the case in a local paper in Philadelphia in 2004, and in 2008 took a job as an investigator at Innocence Project New Orleans, where I did finally learn something about murderers. It turns out there’s not much to understand. Most are too angry, too drunk or high, too narcissistic, too crazy, too damaged, too some or all of the above to think about what they’re doing. A few are psychopaths, people who have no feelings for others but can fake them. I once asked the former head of the New Orleans Police Department’s homicide division: out of all the murderers you’ve been in a room with, what percentage were evil (psychopaths) and what percentage were just idiots (the rest)? Ninety-seven percent idiots, he said.
The problem is, this isn’t satisfying; the crime of murder is so big we want the suspect to fill up the required space, and our system encourages this because once the victim is dead the entire process is geared to the suspect: who is he, what did he think, why did he do it, did he understand it, and so on. Popular culture is obsessed with the psychopaths, the devious geniuses, but the reality of murder is so grimly different.
In writing this book I also didn’t end up learning anything about the death penalty when it “works.” Instead, I’ve learned how deep the culture of “win at all costs” is in DA’s offices, and how DAs and judges tend to reflexively dismiss all questions about a case once a verdict has been reached. I have developed an even greater respect for the lawyers, investigators, journalists, and inmates around the country who do the work of challenging wrongful convictions full time. And I have come to dislike the phrase “The truth always comes out.” It does not; it has to be pried out, and when it comes to our criminal justice system you can bend iron with your hands just as easily.
This book recounts the story of a 1988 murder and the ensuing investigations and trials. I wasn’t present for any of that; when my research into the case began in 2001, it was already five years after the verdict in this case. I published new evidence about the case in my 2004 article in the Philadelphia City Paper, and additional new evidence has come out since then, mostly due to the work of Walter Ogrod’s excellent defense team. I am not privy to their files and have seen only the public briefs they have filed on Walter’s behalf, some of which include my earlier work on the case.
In a case as complicated as this one, the various participants see things differently to begin with and change their stories over time; memories fade and, science confirms, change over time. Where two or more stories disagree or someone’s story changes over time, I have relied on the account given closest in time to the event in question, cross-checked with whatever evidence there may be. Significant disagreements about important events have been highlighted in the text and in the notes. Dialogue in quotation marks is taken directly from an interview with someone present for the conversation, if that conversation is supported by other evidence, or from a transcript of the conversation or another direct source. Any thoughts or feelings attributed to people in the book are as they were told to me or recorded at the time of the event. I have tried to portray the thoughts and feelings of those involved as accurately as possible and to make it clear when I’m offering my own opinion or insight.