The Death Penalty on Trial.

Bill Kurtis Public Affairs www.publicaffairsbooks.com 192 pp., $25

The theme shaping this short book is a quote from Supreme Court Justice Thurgood Marshall. In Gregg v. Georgia, the 1976 case reinstating the death penalty, Marshall said in his dissenting opinion that if the American people were better informed about the immorality of the death penalty, "they would consider it shocking, unjust, and unacceptable." (The Court had found the death penalty unconstitutional in Furman v. Georgia in 1972.)

In less than 200 pages, Bill Kurtis, host and producer of several syndicated investigative and crime-related television programs, tries to explain his metamorphosis from a death penalty advocate to a staunch opponent. He does this by focusing on the details of two cases where the death penalty was wrongly ordered, the convictions reversed on appeal, and the defendants eventually acquitted. He concludes from this microcosm that the current death penalty system is fatally flawed.

Kurtis, a 1966 graduate of the Washburn University School of Law in Topeka, Kansas, selected compelling cases to make his point. Both arose outside urban centers and involved white victims and white defendants. Neither case raises issues of overcrowded urban courts and racial unfairness, which have been known to be contributing factors in guilty verdicts for innocent defendants. In cases like these, the justice system should work best, and yet it failed miserably, he writes.

In the first case, Ray Krone was wrongly convicted in 1992 of a vicious rape and murder and sentenced to death. After that conviction was reversed on appeal for trial error, he was convicted again in 1996, but this time a sympathetic judge sentenced him to life in prison.

In 1999, DNA analysis identified the true killer, an already imprisoned sexual predator who had lived near the victim's workplace. Kurtis reports that Krone was the 100th person freed from death row since 1973 and that DNA was a substantial factor in 12 of those cases.

Kurtis says Krone's case was especially shocking considering how improbable it was that a person like him would be convicted of such a crime and how easy it was for him to fall prey to a fallible justice system. He had no criminal record and held a responsible job. When the crime occurred, he was in bed at his mother's house. She and his sister were witnesses.

Krone was a suspect because he had dated the victim, the young night manager of a bar, and on the day of the crime, she had told a coworker that she was meeting "Ray" after closing. His misfortune also stemmed from the fact that he had poor orthodontia work as a child. The killer had bitten the victim, and the state's forensic dental expert prepared a video--introduced at trial over defense objection--that showed Krone's teeth floating through the air and exactly matching the bite marks. The vicious nature of the bite was the special circumstance allowing for the death penalty. On meeting the government's impressive forensic dentist, even Krone's lawyer and his dental "expert" (sadly, the lawyer's own dentist) were convinced Krone was guilty--before seeing the video.

The first conviction was reversed because the prosecution had withheld exculpatory evidence--its first forensic dentist had found no match--and had not provided the video to the defense before trial. Nonetheless, in the second trial, despite excellent representation and defense testimony by noted forensic dental experts, Krone was convicted again. The jury found the video persuasive, though it turns out it was a work of fiction--the government's expert had altered the images to create the match.

The second case involved the brutal 1998 murder of Bonnie Dryfuse, her two young daughters, and her niece in New Castle, Pennsylvania. The defendant, Thomas Kimbell, was--unlike Krone--exactly the kind of person who might be suspected of crime: a junkie living in a trailer park with his mom, hustling every day for a new fix. It was easy to believe that in his desperation for drug money, he might have entered the nearby house of the victims, been discovered, and in a drug-induced fury killed the witnesses.

The unspeakable horror of the crime--multiple knife wounds and kids stacked up like firewood--and its seeming personal nature should have led the police to focus on Bonnie's husband, Tom "Jake" Dryfuse, who had discovered the bodies and had blood on his hands, which was inconsistent with the story he told police. But early on, Kimbell became an easy suspect, largely because of his proximity to and curiosity about the crime.

Unlike many defendants, Kimbell seemed to have competent, though inexperienced, counsel. The prosecutor, a veteran of 80 homicide cases, was even better. He used circumstantial evidence and questionable prison informants to weave a story that covered up many holes in the case.

The conviction was reversed on appeal because the trial judge had not allowed the defense to cross-examine its own witness. Jake's sister had told police that Bonnie told her on the phone just before the crime that Jake was pulling into the driveway. This placed him at the crime scene almost an hour before he said he discovered the bodies. But at trial as a witness for the defense, Jake's sister testified that Bonnie had said that "someone" was pulling in. The judge, following the common law rule, refused to allow the defense to impeach its own witness by introducing the prior inconsistent statement.

At the new trial, that statement about Jake, the recanting of damning stories by informants, and better forensic evidence (not even DNA) clearly indicated that the husband was the likely murderer. The jury acquitted Kimbell. Kurtis reports that Jake Dryfuse is still at large.

Kurtis is certainly correct in asking why no one--not the trial judge, the police who knew of Jake's sister's statement, or even a fair-minded prosecutor--saw the obvious miscarriage of justice in the first trial. He makes an interesting comparison: When the space shuttle exploded, there was a rush to find out what went wrong. When 100 people are wrongly placed on death row in 25 years, no such urgent investigation takes place; the criminal justice system continues to operate as if such errors were acceptable. Reversal on appeal after years lost in prison is too late and too unlikely, Kurtis says.

Though the two cases are well chosen and reveal the arbitrary nature of the death penalty, the book will more likely interest lay readers than provide practical help to lawyers. Its handling of legal issues is simplistic at best. Also, the author is somewhat sloppy in stating the facts of the two cases--which is more irritating than misleading.

But as a warning for any lawyer of what can go wrong in handling a death penalty case, the lessons hit home like a hammer. And Kurtis leaves us believing that events like those that befell Krone and Kimbell could happen to any of us. Perhaps, that is reason enough for the book.

JAMES M. McGOLDRICK JR. is a professor at Pepperdine University School of Law.