Death Is Different, Part 2

The Open Mind
Host: Richard D. Heffner
Guest: Scott Turow
Title: “Death is different …”, Part II
VTR: 7/21/03

I’m Richard Heffner, your host on The Open Mind. And this is the second of our programs with the extraordinarily readable and popular lawyer/novelist Scott Turow, who’s most recent work of fiction touching on the always compelling subject of capital punishment is “Reversible Errors” and whose sensitive and thoughtful new Farrar, Strauss and Giroux volume is, appropriately enough, “Ultimate Punishment: A Lawyer’s Reflections on Dealing with the Death Penalty.”

So let’s pick up now where we left off last time, and let me ask you, Mr. Turow to consider what you wrote in “Reversible Errors” when you gave to your central character some words that I thought were just absolutely fascinating. You wrote, “Since leaving the prosecuting attorney’s office,” as you had left the United States …

TUROW: MmmHmmm

HEFFNER: … Attorney’s office, “Arthur had played defense lawyer infrequently only when one of the firm’s corporate clients or its bosses were suspected of some financial manipulation. The law he lived most days as a civil litigator was a tidier, happier law where both sides fudged and the issues raised were miniscule matters of economic policy.” Then you go on, “His years,” and you quote this paragraph in your “Ultimate Punishment” volume, “his years as a prosecutor seemed to be a time when he’d been assigned each day to clean out a flooded basement where coliform bacteria and sewer stink rotted almost everything. Someone had said that power corrupted, but the same applied equally to evil. Evil corrupted. A single twisted act, some piece of gross psychopathology that went beyond the boundaries of what almost any body else could envision. A father who tossed his infant out of a tenth floor window. A former student who forced lye down the throat of a teacher. Or someone like Arthur’s new client who not only killed, but then sodomized one of the corpses. The back flow from such acts polluted everyone who came near. Cops. Prosecutors. Defense attorneys. Judges. No one in the face of these horrors reacted with the dispassion the law supposed, there was a single lesson … things fall apart.”

Now, I asked at the end of our first program … where do they fall apart most? What’s the weakest link in the cops, judges, prosecutors, defense attorneys, etc.?

TUROW: Well, in these kinds of cases I think the weakest link tends to be juries.

HEFFNER: Juries?

TUROW: And I’m not … I don’t mean to attack the American jury system, because, you know, it’s … like Churchill said about democracy, “it’s a rotten system, it’s just better than anything else.” But I think … you know there’s a saying for, for the jury, it’s always opening night. And for them very often exposed to the crime …the crime itself is evidence of guilt. And, you know, in most of these wrongful …

HEFFNER: Wait a minute, let me stop you …

TUROW: Yeah.

HEFFNER: What do you mean, “the crime itself is evidence of guilt?

TUROW: I mean that the crime, by itself is so awful that, they really just want to convict somebody. And, I was involved in a case where I once said, “look, if Mother Theresa was sitting in the defendant’s seat, she’d be convicted.” Because the facts of the case are just so, so horrible. And, if you look at the wrongful conviction cases around the country, almost all of them were decided by juries. So, because, you know, the crime ends up turning the burden of proof around. Instead of the jury finding guilt beyond a reasonable doubt, they look at the defendant and say, “You know, I don’t know. He, he might have done it, but I’m sure as hell not going to take the chance and put him back on the street and let him, you know, rape and murder another little girl.”

So juries very often become a weak link. It’s, it’s … you know, judges don’t like to decide these cases. They don’t like that responsibility, either. Sometimes the jury is the only refuge depending on the nature of the system. Some cases allow judges to refuse to accept bench trials, and sometimes in these cases, they will.

But, you know, the jury only exhibits the same tendencies that everybody else does. And that becomes one of the disfiguring elements in, in capital litigation. Just the raw passion these cases inspire. I think another, another sort of weak link is the way we deal with the survivors of these crimes. It’s a devastating loss unlike any other. But the victims … to a victim, of course, to the surviving family members, their loss … I mean whether you lost some, someone you loved to a mass murderer like Timothy McVeigh, or whether you lost that person as the result of a, you know, an uncontemplated murder in the course of a liquor store hold up, your loss is equal. And the anguish and the clamor of victims is another, another factor in the system that sort of tugs against reason.

HEFFNER: It distorts it, you think.

TUROW: I think, it makes it hard to make reasoned distinctions between cases. It’s one of the main reasons that I disagree with people who say, “Well, I really see everything that’s wrong with the death penalty, but I can’t abide the notion of somebody like McVeigh or John Wayne Gasey, who killed 33 young men in Chicago. I can’t abide the notion of them, those people living. So I’d like to have a death penalty that’s reserved for the most extreme cases.” Generally, it’s very hard to define what those cases are, and I say that having taken my own shot at it on the Ryan Commission. And watch the categories just start expanding almost at once, as somebody holds up a hand and says, “Well, what about him?”

And the main “What about him-ers” are the people who’ve lost someone and they … if, if their case can possibly be shoehorned within the existing categories, they’ll do it. And, you know, the line just starts moving.

HEFFNER: What about the Ryan Commission? What about your experience there? And the results of the Commission’s Report?

TUROW: Well, it’s … it was a great experience at the time. This was … very often, you know, these public bodies, everybody’s very honored to be appointed and then they go running back to whatever it was that, that got them on the Commission in the first place. And they don’t have time for it in their lives.

The 14 people who sat on the Ryan Commission made this time, made the time to think about these problems and to try to deal with them thoughtfully. And also to conciliate with one another. We started out knowing that we were not going to have complete agreement with each other on so volatile an issue. But we really worked together for two years and, I think, everybody on that Commission became very fond of everyone else.

But as good as the experience was, and it’s starting to look, in retrospect even better because many of the reforms that we recommended are … have been carried into law in the State of Illinois.

HEFFNER: You didn’t expect that, did you?

TUROW: I, I was pretty skeptical. I was pretty skeptical. Now, you know, you can … I think the most hard-nosed among us would point out that the most significant reforms were either watered down or were not passed. As for example a statewide Commission that would review the decisions of individual prosecutors to seek the death penalty, so…

HEFFNER: Did you think that the prosecutors would let that happen?

TUROW: Ah, no, I didn’t think they would let it happen, and they haven’t. But I thought it was a pretty significant reform and I wished … it’s, it’s both a safeguard to insure that the laws are applied uniformly in this state because there’s terrible disparities in Illinois, like every other state about who gets selected for death. And also it would protect against those rare, but nonetheless troubling instances when prosecutors don’t act in complete good faith in making these decisions.

HEFFNER: You say “rare”. And in between these two programs, I introduced you to my son, who’s a prosecutor …

TUROW: MmmHmm.

HEFFNER: … so it’s not …

TUROW: MmmHmm.

HEFFNER: … just fatherly concern, but is it so rare? I am under the impression that prosecutors prosecute when Dershowitz and Kunstler and others have been here, they’ve made it sound as though prosecutors are not concerned with justice, they’re concerned with winning cases.

TUROW: Well, that’s …

HEFFNER: Don’t be diplomatic.

TUROW: I’m not going to be diplomatic … it’s … it fails to take account of the other side. You know Alan is a great defense lawyer, but he’s never been a prosecutor. So, same thing would be true of Bill Kunstler, to my memory. You know, very often to the prosecutor, winning the case and justice are synonymous, and it’s hard to exist in this adversarial system if you lose sight of the fact that the facts may look different to the, to the contending parties.

I have to say, with no effort at incense swinging, I’ve dealt with prosecutors who I’ve hated, who I’ve thought were just had their feet stuck in concrete and were more engaged in defending their egos than anything else. But, the great run of prosecutors that I’ve dealt with are trying to do the right thing. You know, there are sort of institutional traditions in offices, I think the world of criminal prosecution’s grown much more hard-nosed in the last twenty years and I regret that.

But I still think that generally speaking my dealings with prosecutors, whether it’s been in the state courts in Illinois, or the Federal courts have shown people who are trying to be fair. Sometimes I don’t agree with them and I have one good friend who, you know, investigated a client of mine. This guy was completely innocent, put him through the wringer for close to four years and … but this friend is good enough to say, you know, I still sit up at night thinking about what I did to that man.

But I never, ever questioned this particular prosecutor. I thought they were wrong, but I had worked with him when I was Assistant, I had worked with the FBI agent when I was Assistant, he was a close, personal friend, I knew that they were doing what they thought was right. They were wrong, it … the result in terms of this particular client was abusive. And I tried to convince them of that and, you know, never succeeded, but they’re still good people who were trying to do the right thing.

HEFFNER: Tell me about that, I’m interested perhaps because I have a picture of the law and of the process that is so innocent …

TUROW: MmmHmm.

HEFFNER: … and so wrong … if the right thing is being attempted by the prosecutor, how can the wrong thing be the result so often? I mean the, the statistics that are here in your book on “Ultimate Punishment” …

TUROW: Right.

HEFFNER: … “In other words more than a third of the time Illinois had imposed a capital sentence on persons who either were not guilty or, on second thought, did not deserve execution.”

TUROW: Right.

HEFFNER: On page 23, “But in the 1990’s, the advent of DNA testing repeatedly showed that innocent people had been convicted of violent crimes.” On page 97, “Again and again the cases that seemed to present the most compelling facts favoring execution proved, under scrutiny, to have elements that raised second thought.”

TUROW: Right.

HEFFNER: How do you account for that?

TUROW: I, I account for that because of the nature of the crimes. As I’ve …

HEFFNER: You say … okay … so horrendous …

TUROW: That, that, that, you know that … look, first of all in Illinois and many other states prosecutors are elected. They …

HEFFNER: Chief prosecutors.

TUROW: Yes, the Chief Prosecutor is elected and to some extent he’s got a noose around his neck and will swing with the most celebrated and most controversial crimes. Generally speaking, the public isn’t paying a lot of attention, but when you’ve got a horrible murder, the public wants results. So, and there’s a natural kind of rush to judgment in that circumstance. It’s impossible to be isolated from, from the political pressures if you want to keep your job.

Again, I know a lot of prosecutors who I think do an outstanding job, despite that. My friend, Mike Waller who sat on the Commission with me in Lake County, Illinois, is that kind of prosecutor in my mind. But, it’s … you got to be honest and say, if you’re an elected prosecutor, you’ve got to be … you become pretty result oriented.

And, you know, the nature of the system is one where you become hardened toward bad guys. You know, “don’t give me excuses, they’ve all got excuses. They’re all guilty. They all did something. And I’m going to get this guy. This was a terrible crime and I’m going to get this guy.” And that impulse becomes intensified in the cases that give rise to capital punishment.

And the other thing that happens is the graver the punishment that’s sought in my experience, the less able prosecutors are to engage in second thought, particularly if there is evidence of innocence. They just … they really hate the idea that they made a mistake. They hate it because, of course, it undermines all the other work that they’ve done. And, they become very reluctant in the face of evidence that emerges late in the game to see the case in a new light. So all of those things contribute to the kinds of mistakes that happen often in our capital system.

HEFFNER: Bad things happen … huh?

TUROW: Right.

HEFFNER: Let me ask you … let me go back to this question in the few minutes we have remaining to this program, to the question of your Commission …

TUROW: MmmHmm.

HEFFNER: … and it’s recommendations …

TUROW: MmmHmm. MmmHmm.

HEFFNER: What do you think the high points are? Which do you think will survive?

TUROW: Well, videotape of complete interrogations is already the law in Illinois, it was signed in July by Governor Blagojevich. So that’s law in Illinois and by that I mean that instead of just taping a confession, you tape from the minute the suspect is brought into the police facility. So that there’s not the kinds of questions that arise which I portrayed in the Confession in “Reversible Errors”, if you want an example of …

HEFFNER: Right.

TUROW: … of how an interrogation can go awry. We also recommended changed lineup procedures and those have been adopted on a pilot basis. We recommended narrowing … we recommended eliminating the felony murder qualifier for the death penalty. That has been narrowed in Illinois.

HEFFNER: You don’t think it’s every going to be eliminated?

TUROW: Well, I wish … I hold out hope on this only because I just can’t understand it. And this, this is too detailed a conversation for this kind of forum, but to me it just doesn’t make any sense. I think it ought to be the nature of the murder, not the nature of some other crime that determines whether or not you get the death penalty.

But, you know, most of the reforms we have recommended … you know, funding, training, are going to be implemented in the State of Illinois. As I said, there are some big ticket items, reducing the full panoply of eligibility factors. We have 21 eligibility factors in Illinois. We started out with seven, and this is that impulse to expand that I was talking about before. That’s not going to happen, nor is the statewide Commission to review the decisions of prosecutors’ offices. So there’s still potential reforms.

But I have to say that the state legislature and the new Governor took the bit in their teeth and ran with it. I think the reason is because when George Ryan commuted everybody on Death Row in Illinois, he said “I am compelled to do this because there has not been any reform by the … passed by the State Legislature.” And indeed there had not been at that point. And I think to the amazement of many people, including me, the citizens in Illinois responded to that argument. There was not the kind of broad outrage that I suspected would be, you know, abroad in the land over what George Ryan did. Public opinion in Illinois was basically evenly divided. And I think the reason it was evenly divided, is they understood “Well, the Legislature did nothing, the guy’s got to do something.”

HEFFNER: Why do you think there has been quite so much discussion, quite so much conversation, so much analysis of the question of capital punishment in recent times in our country?

TUROW: Well, I think there are many, many reasons. It’s interesting to see how current and … the question has become. And how much sort of subtle resistance there is within the general population to the death penalty. For example, these days you do not get a majority of Americans saying they favor the death penalty if you give them the option of life without parole. There are still more people who favor the death penalty than not, even in that situation. But if there’s obviously some erosion …

HEFFNER: Very close … yeah.

TUROW: … it gets very close … 49 to 42. What’s involved? First of all, DNA … the number of exonerations has appalled people across the country. It should. And another thing to think about, those are only the cases were there’s genetic evidence available. I, I think that there is some mood of second thought about the costs and the, of the whole process on the society. The cases go on forever, the reality is that, you know, who gets executed and who doesn’t even among those sentenced to death appears to be entirely serendipitous. And I also think there’s something about our present circumstance in the wake of 9/11 that makes people kind of scratch their heads and say, “you know, why are we … we’ve got these real enemies in the world, why are we busy killing other Americans.”

HEFFNER: You think that’s a factor?

TUROW: I think, I think in a subtle way it is, yeah. I think that … I certainly think the predominating factor is the recognition there are a lot of innocent people on Death Row. I also have to say one other thing. Which is I think Americans sense of developmental psychology has become much more nuanced, particularly in the last decade. If you think about the number of sitcoms where the, where the characters are freely discussing their time in therapy, as compared with twenty years ago, it’s really quite, quite amazing. And I do think Americans are much more amenable to the idea that even people who are evil didn’t choose to be that way, they were generally exposed to horrible circumstances and even the recognition that people who have done evil are not necessarily evil themselves.

HEFFNER: The medical model?

TUROW: I think it’s, it’s penetrating. Certainly the therapeutic model. So I think all of these factors have combined to give Americans a new found reluctance about capital punishment. You, you know the figures, you know that in this Administration that they’ve sought the death penalty sixteen times and juries have imposed it only once. So there is, there is a move abroad against this.

HEFFNER: You don’t mean “abroad”, abroad it’s always been … you mean here …

TUROW: I mean here … America … right.

HEFFNER: No. And how long before you think we’ll see the elimination, either by the courts in reversing themselves, or itself … the High Court. Or in State legislatures.

TUROW: I don’t think you’re going to see it in the legislative process. And that’s because … even though in a State like Illinois, there’s a significant majority of people who say they would not vote against a legislator simply because that legislator was against capital punishment. The 30% who say they would show up and vote. They are extremely motivated and …

HEFFNER: Which motivates the candidates.

TUROW: Right. So, I, I think that this issue is ultimately going to be resolved in the courts. Obviously the current Supreme Court has taken a very hard look at capital punishment, and I think eventually there are so many exceptions that are going to be created that they are just going to throw up their hands, in the way that Justice Blackman did many years ago and say, you know, this, this cannot reflect the law as a work of reason.

HEFFNER: I want to talk with you about many other aspects of the law … will you stay for a third program?

TUROW: Sure. Sure.

HEFFNER: Good.

TUROW: Thank you.

HEFFNER: Thanks, Scott Turow for joining me on these programs.

HEFFNER: And thanks, too, to you in the audience. I hope you join us again next time, and if you would like a transcript of today’s program, please send $4.00 in check or money order to The Open Mind, P. O. Box 7977, FDR Station, New York, New York 10150.

Meanwhile, as an old friend used to say, “Good night and good luck.”

N.B. Every effort has been made to ensure the accuracy of this transcript. It may not, however, be a verbatim copy of the program.