Death Penalty on Trial

In the few feet from the curb to the front door of the law school the party passed a newsstand. All the local papers carried the story. The Chicago Sun-Times quoted "sources" that said the governor would pardon some death row inmates in his last three days in office. The Chicago Tribune had also picked up the leak, but its columnists wondered if Ryan would go through with such a radical act. After all, such pardons would be unprecedented. No one could remember a governor ever doing anything like this. It would be a slap in the face of the entire justice system. Ryan would be declaring that America's entire system of lawyers, trial courts, and appellate courts built on centuries of English common law could not handle the job. He would be taking justice out of their hands and redefining it himself. Quite an act of bravado, especially for a non-lawyer.

The governor walked straight to the elevators, offering a quick and easy wave to the security guard. He had been a popular governor and would have easily won re-election but for a nagging litany of corruption charges during his tenure as Illinois secretary of state. This would be one of two final speeches in a long career in Illinois politics.

A sense of finality hung in the air as the group made its way down a corridor on the eighth floor. They entered the lecture hall. George Ryan strode from the back of the room down its sloping floor to a podium at the center, where he would stand like Cicero lecturing in an ancient amphitheater. Some fifty tables marched up around him in a tiered pattern, filled with young law students, many swiveling back and forth nervously on their attached seats.

Ryan looked up at their eager faces. He was an approachable, jolly sort of man. His short-cropped gray-white hair topped a round face giving him the warm look of a beloved grandfather. But today his face was rigid and serious. He frowned down at his notes. Then George Ryan took a deep breath and made history.

His first words from the podium, carried live on radio and recorded by an array of television cameras, made it clear that he had chosen to leave a remarkable legacy. He would pardon four inmates sitting on death row, he said, because, "It was the right thing to do."

"Three years ago," Ryan said. "I was faced with startling information. We had exonerated not one, not two, but thirteen men from death row. They were found innocent. Innocent of the charges for which they were sentenced to die. Can you imagine? We nearly killed innocent people. We nearly injected them with a cocktail of deadly poisons so that they could die in front of witnesses on a gurney in the state's death chamber. That's a pretty gruesome picture."

There was no ruling from the Illinois Supreme Court to back Ryan up, no opinion from the state's attorney general. This was the personal judgment of a former pharmacist and aging statesman who had come to his decision the hard way, as the final arbiter over the lives of men he might have to send to their deaths.

George Ryan had only two days left in his term. He could have escaped this difficult decision and driven off toward his hometown of Kankakee, Illinois, leaving the heavy responsibility to the next governor. But Ryan knew there was a serious problem with the Illinois system and that to walk away would have been a dereliction of duty. And so he chose to sign off as a whistleblower, knowing he would be pilloried by relatives of the victims of death row inmates, death penalty proponents, and many in law enforcement. He most likely did not know he would also be nominated for the Nobel Peace Prize and would win praise from governments and individuals around the world. Either way, his decision to speak out instead of remaining quiet was an act of immense courage.

Why did he do it? The short answer is that George Ryan felt deeply betrayed; the system of justice he had always trusted was not working and maybe never did work the way we all had been led to believe.

Governor Ryan recited the statistics for his audience: "Half of the nearly 300 capital cases in Illinois had been reversed for a new trial or re-sentencing. Nearly half!" he emphasized. "Thirty-three of the Death Row inmates were represented at trial by an attorney who had later been disbarred or at some point suspended from practicing law.

"I'm not a lawyer," he said, "but I don't think you need to be one to be appalled by those statistics. I have one question: How does that happen?"

The question was the cry of a layman who may not know the details of habeas corpus or be able to translate res judicata, but who has a common sense of right and wrong.

How does that happen?

What was happening in the process of determining the truth that prevented justice from prevailing? In an assembly plant, the foreman could check the robots or the individual parts being welded together. Quality control employees could stop the line if they detected anything amiss. If a defective product reached the end of the line the whole assembly might shut down to find and fix the problem. Why weren't such checks and balances working in death penalty trials? Why wasn't someone shutting down the line?

The governor's voice rose as the emotion of sleepless nights spilled out: "We had executed twelve people since capital punishment was reinstated here in Illinois in 1977. With the thirteenth exonerated inmate in January of 2000, we had released more innocent men from Death Row than those hopefully guilty people we had executed. Three years ago, I described it as a shameful scorecard. Truly shameful. So I did the only thing I could. I called for what is in effect a moratorium. A lot of people called that courageous. It wasn't. It was just the right thing to do. How do you let innocent people march to Death Row without somebody saying, 'Stop the show'?"

Three years before, George Ryan had stopped the show. And now, with this extraordinary act of gubernatorial pardon, he was assuring himself a place in the annals of American history. No other inmate had been pardoned while sitting on death row still appealing his case. Ryan pardoned four. And there was more to come.

The next day, January 11, under another cold Chicago sky, Governor George Ryan upstaged himself by commuting the death sentences of 164 other death row inmates, replacing the threat of execution with a sentence of life in prison without parole. Among those inmates were psychopathic killers, sexual predators, organized crime hit men, and the most deviant kinds of criminals. Their crimes challenge the imagination of how terrible and cruel one human can be to another. Jacqueline Williams cut the full-term fetus from the belly of a pregnant woman she and Fedell Caffey had killed because she wanted a baby. Although the baby lived and was kidnapped, the two other children of the victim were killed. Daniel Edwards lured Steve Small, the publisher of the Kankakee Journal newspaper, to the garage of a home he was renovating, stuffed him into the trunk of a car, and then buried him alive. Small was a neighbor who used to babysit for the Ryan children in the governor's hometown.

The governor was not deterred. In his pardon speech, he chided prosecutors for being overzealous, the state legislature for not passing death penalty reforms, and the legal profession in general for presiding over a system that could not be trusted. "If we haven't got a system that works then we shouldn't have a system," he said.

Some lawyers protested. They maintained that the system did not fail. The elaborate process of appeals and review by higher courts, they argued, would eventually find the errors and release the wrongfully convicted. But it takes an average of twelve years for a case to work its way through the process, which was one more reason Governor Ryan chose to circumvent the full legal process and pardon the death row inmates with only three days left in his term. Justice delayed is justice denied, he said.

Cook County State's Attorney Dick Devine took issue with Ryan's decision saying, "All of these cases would have been best left for consideration by the courts, which have the experience, the training, and the wisdom to decide innocence or guilt. Instead, they were ripped away from the justice system by a man who is a pharmacist by training and a politician by trade."

Governor Ryan stood fast. He had chosen a path few politicians have ever had the fortitude to tread, to stand tall in opposition to the legal establishment. And yes, it was all the more remarkable because he was not a lawyer but a citizen who saw injustice being committed and decided to stop it.

Inside the prisons throughout the state, word spread like news of a riot in the next cell block. Every inmate knew someone on death row. Every one had been condemned by the criminal justice system and could convincingly argue his innocence. This was a shock none of them had seen coming. For the first time, inmates in the general population actually envied those on death row.

The collateral damage was quickly tallied by the prosecutors whose staffs had worked hard to convict the residents of death row. They were doing their job, they argued, representing the families of the victims. Ryan was off his rocker. These were not innocent inmates like the seventeen wrongfully convicted who had been released. This was a blanket commutation. Those criminals deserved to be there.

State's Attorney Dick Devine, left holding obsolete files and worthless death sentences, described the governor's action as a breach of faith with the dead victims and called it "outrageous and unconscionable." Others held their fire, waiting to see if Ryan's move was just a desperate attempt to build a legacy in his final days of office, or whether it would be considered one of the great acts of courage in America's political history.

George Ryan's decision was all the more astonishing because he had been an advocate of the death penalty for twenty-six years while he served Illinois as a legislator, secretary of state, and lieutenant governor before taking office as Illinois' 39th governor in 1998. But something happened in 1998 prior to his oath of office. That was the year Ryan faced the statistics for the first time and fully realized that Illinois had released more men from death row than it had executed. Two years later, in January, 2000, the governor declared a moratorium on executions until a commission could review the system of capital punishment in Illinois. "Until I can be sure, with moral certainty, that no innocent man or woman is facing a lethal injection, no one will meet that fate," Ryan said. The blue ribbon commission went to work and Governor Ryan went about his business of governance.

The teaching technique pioneered by Professor Protess was cloned by Ed Bishop of Webster University near St. Louis. Bishop sent his students to interview a key witness in the death row case of Richard Clay, convicted in a 1994 killing. The witness in that case, a jailhouse informant, accomplice, and suspect in the killing, Chuck Sanders, told the students that prosecutors had told him to overstate the amount of prison time he'd be getting for his role in the murder-for-hire scheme when he was called as a prosecution witness to finger Richard Clay. Sanders told the jury he'd be going to jail for ten years when in fact he got a five-year suspended sentence. As a result of the students' findings, U.S. District Judge Dean Whipple ordered a new trial for Richard Clay, saying the state had violated Clay's rights by failing to disclose details of Sanders's "flexible or negotiable" plea deal. Would the error have been corrected within the legal system? Probably not. Witnesses are not automatically re-interviewed.

The Northwestern and Webster University students had pierced the veil. They had figured out how the system works and they had discovered that often it doesn't work properly. Journalism students had interviewed witnesses for class projects before, but they didn't have the impact of Protess's students. It was the DNA evidence that made the difference.

DNA provides evidence without bias because it reveals the unique pattern of chromosomes that exist within each human being's living cell. DNA is our individual code or blueprint of life. It's a marker of the unique identity of every person on earth. And it's contained in every cell, no matter how minute.

Back in the early and mid-80's, DNA had not yet become a fixture in criminal investigations. It was still encumbered by the need for rather large amounts of sample testing material. If large samples could be obtained, DNA was considered the last word, an unquestioned tool that could match a criminal to the genetic material he had left behind at the crime scene. Or, in the cases of the innocent, eliminate the possibility of guilt by identifying someone else.

In the late 1980's, most death row cases had not gone through DNA testing, usually because there weren't enough cell samples for reliable results. Throughout the 1990's, increasingly sensitive instruments allowed laboratories to get DNA readings from smaller and smaller amounts of genetic material left on or inside a victim. It worked in old cases as well as new. If the original evidence in an old case had been saved, the DNA could be read many years later and compared to the person who had been convicted of the crime.

Slowly, the science of DNA permeated the legal system. That's when the cracks in the system became visible. As DNA became the ultimate test of guilt or innocence, it also became the ultimate measure of the legal system itself. And that judgment would not be good. The entry hole blown open by DNA would reveal a system awash in flaws, a system so institutionalized it had lost sight of the end goal, justice.

New studies of the legal system contributed to a rising tide of concern across the United States. Professor James Liebman of Columbia University School of Law studied twenty-three years of capital cases and found reversible error in seven of every ten capital sentences. He found so many mistakes, he concluded there are "grave doubts whether we do catch them all." When Professor Liebman looked at Illinois, he found the overall rate of serious error in capital sentences to be 66 percent, slightly lower than the national average of 68 percent. Professor Liebman concluded that "flaws in America's death-penalty system have reached crisis proportions." ¹

The Center on Wrongful Convictions at Northwestern University School of Law came to the same conclusion. The center is a leader among a loose network of lawyers who donate their time and talents to correcting death penalty mistakes. These lawyers recognize that there are inevitably too many errors within the justice system to use it as a basis for taking a human life. Theirs is a battle against judges who don't want their judgments questioned; against prosecutors and defense lawyers who made mistakes; against shoddy investigators; and against a criminal justice system that tends to hide from criticism.

When Governor Ryan asked how thirteen innocent men could wind up on death row, the Northwestern Center opened its bulging files to highlight eight primary reasons why the system routinely breaks down. The Center noted:

On April 15, 2002, Governor Ryan's Commission on Capital Punishment reported its findings after twenty-four months of study. The commission presented eighty-five recommendations to improve the system, but it expressed doubt that any improvements would guarantee that an innocent person would not be executed at some time.

It was nine months later, on January 11, 2003, when Governor George Ryan announced the final decision in his three-year odyssey, commuting the death sentences of 164 Illinois inmates to life in prison without parole. Congratulations were sent by Nelson Mandela and Pope John Paul II.

George Ryan's conversion did not exactly descend in a flash of light. For three years he had struggled with the fact that thirteen innocent men had been sent to death row. He was forced to face the problem because as governor he couldn't get away from it. His official act of appointing the blue-ribbon commission of lawyers was predictable and would have relieved him of the full responsibility of having innocent people on death row, but he couldn't escape the specter of executing an innocent person or the shock when his faith in the system was shattered. Like most laymen, he had believed deeply in the system without really knowing how it worked. He had an abiding faith that justice prevails in trials, that after the turbulent give-and-take of the courtroom and the histrionics of the trial lawyers, somehow truth emerged. To learn otherwise ripped into his physical constitution like a cancer. The foundation of his beliefs had been shaken. Now he was driven by the born-again faith that comes to a reformer.

Governor Ryan's conversion interested me because I had similar feelings when I first heard about the "lucky 13." It was a visceral feeling down inside where instinct comes from. There were no fireworks to mark the moment, no flashes of light. But I knew that the thirteen exonerated men would shadow me. I couldn't shake them loose. They opened all kinds of questions: Was the DNA revolution revealing more than mistakes in a few trials? Was it exposing massive cracks in our legal system?

In answering those questions, I knew I would face a bigger problem. I was biased on two counts. First, I thought some people deserved to die for their crimes. For most of my life I had supported capital punishment.