The Problem with the Chair - A conservative case against capital punishment.

At a dinner party in Georgetown during the Reagan years, I was seated next to a liberal journalist I didn't know too well-Sidney Blumenthal, then with The New Republic. No matter what has happened since, he was erudite and charming that night as we discussed the Washington scene. But my mind was largely elsewhere, for that week I had begun work on a story about a man convicted of murder who was possibly innocent. I was preoccupied, not with anything the administration might have been doing, but with the issue of capital punishment.

At some point, I asked my dinner companion his view of the death penalty.

"Oh, we're against it," he replied.

I recall being amused by that pronoun, "we"-Whom did he mean? The Democratic party? The elites?-but eventually I decided he meant the magazine he worked for. I asked him why.

"The moral issue," he said.

I remember also that this remark antagonized me. I do not support capital punishment either, but this was so inadequate an answer that I found myself arguing the other side of the question. I did so by invoking the specter of Steven Timothy Judy.

On April 28, 1979, Judy was cruising down the highway when he came across 23-year-old Terry Lee Chasteen, who was stranded with her kids by the side of the road in her disabled vehicle. Pretending to be a Good Samaritan, Steven Judy further disabled Chasteen's car by disconnecting the ignition wires, then drove her and her three children-Misty Ann, 5, Steve, 4, and Mark, 2-to a secluded location. He raped and strangled Chasteen and drowned the children, one by one, in a nearby creek.

Judy was quickly arrested and convicted of capital murder. At trial, he assured the jurors that if they didn't vote for the death penalty he'd kill again someday. "And it may be one of you next," he warned. "Or your family."

The jury obliged, and on March 9, 1981, the State of Indiana put Steven Judy to death in an electric chair nicknamed "Old Betsy." The "moral" aspect of allowing Judy to live eluded the grasp of not just me, but a majority of Americans. Except to the most ideological of criminal- justice liberals-and perhaps to Judy's fellow inmates at his Michigan City prison-his execution seemed a blow in behalf of civilization.

But if Judy's crimes were hideous even by the grisly standards of Death Row, what makes his case notable almost 20 years later is that his execution-or rather, the lack of an outcry at his execution-was a signal that a momentous change was taking place in America. Until that night, there had been only three executions in the United States since the confusing 5-4 Supreme Court decision in 1976 invalidating all existing state death-penalty laws. But the states inclined to use this remedy had hurriedly rewritten their statutes to conform with the Court's requirements, and just five years later here was Steven Judy saying to the guards as he was strapped into Old Betsy, "I don't hold no grudges. This is my doing . . ."

It was not generally apparent then that a flood of executions was about to begin. Judy's case seemed unproblematic in that he had not appealed his sentence. In so refusing, he had followed in the footsteps of Gary Mark Gilmore, executed by firing squad in Utah in 1977, and Jesse Bishop, who went to Nevada's gas chamber in 1979. John Spenkelink, electrocuted in Florida in 1979 after spurning a plea bargain that would have earned him a measly 20 years in prison-he argued self- defense-was the only one of the four to go to his death unwillingly. But it was the business-as-usual aspect of the Judy case that served as a portent.

The night he was executed, liberal activists descended on Michigan City in a familiar ritual: the candlelight vigil. A crowd of some 200 of them braved the wind and rain to be there, but they were not alone. Earlier, at a "Protect the Innocent" rally in a downtown park, Mark Chasteen, the slain woman's ex-husband, assured a pro-death penalty crowd that he'd "throw the switch" himself. As the hour approached, motorists passing the prison would slow down, honk their horns, and yell, "Burn, Judy!"

On that March night, the United States was heading briskly down a road it had not taken since the rough days of the Great Depression. Not much longer would executions be international news events. In a handful of states, most prominently Texas, they would actually become routine. In fact, within two years, crowds of several hundred Texans would be rallying outside the Huntsville prison on execution nights to celebrate. Battered by a violent-crime rate that threatened the very freedoms we are promised in our founding documents, and angered by repeated accounts of vicious predators who were paroled only to kill again, Americans were calling for a remedy prescribed long ago: "An eye for an eye!" demonstrators would chant.

And who can argue with this ancient wisdom? Well, I will. What if the issue is not an eye for an eye, but an eye for a finger? Or removing the eye of someone you thought put out your eye, but, in fact, only looks like the guy who did? This is not an academic question, and it never has been. And now, thanks to several high-profile cases in which condemned men were exonerated, and thanks to the added tool of DNA evidence, the true horror of the death penalty has made itself plain. The right question to ask is not whether capital punishment is an appropriate-or a moral-response to murders. It is whether the government should be in the business of executing people convicted of murder knowing to a certainty that some of them are innocent.

an old fight

Chicago, where Sid Blumenthal hails from, has long occupied center stage in the timeless debate over capital punishment. Seventy-five years ago, the liberal lawyer and activist Clarence Darrow convened weekly meetings in his Chicago home to discuss the social issues of the day. Paul Cline, my grandmother's husband, attended some of those meetings. I asked him once which discussions he remembered best. His answer: Those in which the great defense lawyer inveighed against capital punishment. Then, as now, the Left considered this remedy barbaric and capricious. It was, they said, applied too easily to the poor and the politically unpopular, especially to blacks, to whom the gallows were akin to lynching. Innocence was raised as an issue by liberals, but then, as now, it was not their primary objection.

Darrow was faced with a subtle dilemma, therefore, when he was retained as defense counsel in the Roaring Twenties' most sensational murder case, the Leopold and Loeb trial. These defendants were not poor or black or immigrants or involved in unpopular political causes. They were, in fact, white, rich, well educated, and not politically active- and their lawyer agreed that they were guilty as hell. In his impassioned closing argument, Darrow actually alluded to the internal conflict this presented for him, even as he labored to spare Nathan Leopold and Richard Loeb the noose.

"This case may not be as important as I think it is, and I am sure I do not need to tell this court, or to tell my friends, that I would fight just as hard for the poor as for the rich," said Darrow during his historic twelve-hour summation. "If I should succeed in saving these boys' lives and do nothing for the progress of the law, I should feel sad, indeed."

Darrow did save the "boys'" lives-at least one of them, anyway (Loeb was stabbed to death in the Joliet prison in 1936)-and he probably did much for the progress of the law as he saw it, too. His closing was taught in law schools for generations afterward, and it is still venerated by legal scholars who oppose capital punishment. "It left the presiding judge in tears," notes Douglas O. Linder of the University of Missouri, Kansas City. "People still think of his summation in the Leopold-Loeb case as one of the most eloquent attacks on the death penalty ever made."

But a perusal of Darrow's argument today is not likely to reduce many conservatives to tears, or even sympathy. Although Darrow based much of his argument for mercy on the fact that neither defendant had yet reached his 20th birthday, the lawyer was also an avowed determinist who seemed to hold the defendants nearly blameless for their vicious crime. He also spent much of his time arguing that history was on a long, inexorable march away from capital punishment and that future generations would consider hanging as barbaric as crucifixion and burning at the stake. A modern conservative reading the trial transcript is more likely to identify with state's attorney Robert Crowe, a gifted Yale Law School graduate who was at the time a rising star in Illinois Republican politics.

In his closing argument, Crowe sarcastically characterized Darrow as "the distinguished gentleman whose profession it is to protect murder in Cook County and whose health thieves inquire about before they go and commit a crime." The term "junk science" was not yet in vogue, but the prosecutor accused a defense psychiatrist of "prostituting his profession" and mocked Darrow's argument that the defendants weren't ultimately to blame for their actions: "My God, if one of them had a harelip I suppose Darrow would want me to apologize for having them indicted."

A GOVERNOR DOUBTS

And so it went for three-quarters of a century, during which the arguments for and against capital punishment barely changed at all- until this year, that is. The governor of Illinois-a conservative, Republican governor named George Ryan-read about one too many cases of Death Row inmates' being freed in his state because of new evidence that showed they were innocent of the crime. "Until I can be sure that everyone sentenced to death in Illinois is truly guilty; 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. "I cannot support a system which, in its administration, has proven so fraught with error and has come so close to the ultimate nightmare, the state's taking of innocent life."

As many now know, 13 inmates condemned to death by the State of Illinois have been cleared of capital-murder charges in the 23 years since capital punishment was reinstated. During this time, the state has executed a dozen inmates convicted of murder, a ratio of governmental failure so alarming that it struck the man ultimately responsible for carrying out the death penalty in a very personal way. "There's going to be a lot of folks who are firm believers in the death penalty who may not agree with what I'm doing here today," Ryan explained. "But I am the fellow who has to make the ultimate decision whether someone is injected with a poison that's going to take their life . . ."

The governor also cited a Chicago Tribune investigative series that examined each of the state's nearly 300 capital cases and found that these trials were routinely riddled with bias and error, including incompetent legal work by the defense lawyers, and that prosecutors relied on dubious jailhouse informants in about 50 of the cases. Two of the Illinois exonerations were brought about by Northwestern University professor Lawrence Marshall, who took on the cases without a fee. In one case, that of Rolando Cruz, Marshall's work resulted in 1) the freeing of an innocent man after twelve years on Death Row for the murder and rape of a ten-year-old girl, 2) criminal charges against the authorities who prosecuted Cruz, and 3) the identification of the actual killer.

The most famous reversals in Illinois came about because journalism students at Northwestern kept unearthing evidence that exonerated various convicts on Death Row. For example, four black men from Detroit had been convicted of abducting a white couple, raping the woman and killing both her and the man. Two of the four, Dennis Williams and Verneal Jimerson, were sentenced to death. Students under the direction of journalism professor David Protess investigated the case and discovered that the prosecution's star witness had an IQ of less than 75 and that prosecutors had fed her details of the crime and coached her into testifying about them.

Public pressure because of these revelations forced the district attorney's office to allow DNA tests-which promptly eliminated as suspects all four of the men convicted of the crime. The students, going through the records of the case, found something even more stunning in the state's files: the names of four other suspects who'd been identified to authorities, but never even questioned by the police. The students interviewed three of them (the fourth, the ringleader, had since died), and, incredibly, all three eventually confessed. They are now serving life sentences.

Then, a little over a year ago, Prof. Protess and five of his students, working with a private detective, wormed a confession out of a drug dealer for a 1982 double murder for which another man, Anthony Porter, had been convicted. Not just convicted, but sentenced to death. In September 1998, in fact, Porter had been two days away from execution when a state appeals court issued a stay to consider whether it was constitutional to execute someone with Porter's IQ (estimated at 51). It turns out his IQ is a bit higher than that, but the point is that the delay in the execution gave the Northwestern team time to dig through the records and finger the man who subsequently confessed to the crime.

"The judicial system commits errors," commented Prof. Protess, in a classic understatement, "because it's run by people."

This simple observation shouldn't come as a bolt from the blue-least of all to conservatives. It just shouldn't be a surprise that civil servants take shortcuts on the job, that juries drawn from the citizenry that gives Bill Clinton a 60 percent approval rating get swept up in the passions of the day, that political hacks appointed to the bench ratify those mistakes, and that bloated state-run bureaucracies are loath to correct them. "Criminal-justice system" is a high falutin phrase, but the courts are just a branch of government, and one that by design has less accountability than the other two.

In other words, if ideology and experience lead one to the conclusion that government is by nature inefficient and inept, then why should it be astonishing that the actions of one branch of government-the judicial branch-are so routinely wrong?

ONE REPORTER'S EXPERIENCE

I will return to this point, but before I do, Iwant to explain why I am absolutely certain that this is a universal problem, that there is nothing aberrant about the Illinois courts. Before I was 30 years old, I covered four cases in which defendants were charged with capital murder, but were, in fact, completely innocent. (In a fifth case, a man from Petersburg, Va.-George Roberts-was convicted of killing his wife, served seven years, and after being paroled, convinced the local cops that he'd been framed.)

In the first of these cases, police in Columbus, Ga., arrested a black man named Jerome Livas and charged him with strangling and raping two elderly white women. No physical evidence linked Livas to the crimes, he did not fit the psychological profile produced by the FBI, and he was borderline mentally retarded (the crimes had been meticulously planned and carried out). When the killings continued with the identical method of operation while Livas was locked up in jail, the cops blithely offered the cockamamie theory that a copycat killer must be on the loose. Livas, they said, had confessed and-this is a phrase that often comes up in these cases-possessed details "only the killer would know."

I covered the police beat in that town for the local paper, and a friendly cop called me at home one night to tell me that all those supposedly confidential details had, in fact, been fed to Livas by the detectives themselves, and that Livas was so unintelligent and so eager to please that he'd just parroted them back to the investigators. "This guy would admit to anything," said the cop. Subsequently I tested that theory in a session the Washington Post dubbed "a sensational jailhouse interview." It was sensational, all right, but sad. I succeeded in getting Livas to sign a confession for killing Presidents John F. Kennedy and William McKinley and for kidnapping the Lindbergh baby. Red-faced authorities dropped the charges against Livas, and years later, long after I'd left Columbus, they got the right man-presumably- and he was executed. But it's pretty clear to me what would have happened to Jerome Livas if the real murderer had stopped killing when Livas was arrested.

I'm a Californian, so there was in those years a temptation to think that such miscarriages happen only in the Deep South or in jerkwater towns-but this proved not to be true. They can happen anywhere, in towns big and small, and they do. In my next job, at the San Diego Union, I was working the police beat when the Los Angeles Police Department publicly fingered a Massachusetts convict named George Francis Shamshak as a suspect in the so-called Hillside Stranglings. Daryl Gates, then the head of the Hillside Strangler Task Force, later to be famous (or infamous) as chief of the LAPD, even used that ubiquitous phrase "knowledge only the killer would have" to explain why they were sure they had the right guy. Except that Shamshak was in prison in Massachusetts when some of the killings took place, a fact I pointed out to Gates myself at an entertaining news conference. The details only the killer would know? Turns out that he'd read them in Newsweek.

In the early 1980s, a gifted investigative journalist named Jon Standefer and I wrote enough articles about an aged ex-con named Pete Pianezzi to shame Gov. Jerry Brown into giving him a pardon based on innocence, one of only seven such pardons in the state's history. Pianezzi had been framed for a sensational Los Angeles mob hit of the 1930s that was page-one news up and down the West Coast. There were no good suspects, but Pianezzi was Italian, he had a criminal record, and the district attorney needed a conviction to quell the public pressure on his office. The prosecutor sought the death penalty, but a lone woman juror spared Pianezzi's life by refusing to vote for execution. She reportedly explained her hesitation by saying that if it turned out the jury was making a mistake-the defendant insisted at trial that he was innocent-that error could be reversed if Pianezzi were in prison, but not if he had gone to the gas chamber. This was a prescient observation. Forty years later, at a victory party in San Francisco, Pete introduced Standefer and me to the North Beach crowd as his "saviors," a distinction that properly belonged to that holdout juror whose name has been lost to posterity. She is the person who prevented the state from killing an innocent man.

To me, the most disturbing aspect of the Pianezzi case is that it was such a high-profile murder trial. If it can happen there, what about the anonymous cases in, for example, East Texas, in which the defendant is lucky if a news reporter ever sits through a whole day of testimony? Moreover, the Pianezzi case is no isolated example. Doubt about the guilt of the condemned man is a common thread in some of the most celebrated murder trials in this nation's history. Bruno Richard Hauptmann's chances for a fair trial in the Lindbergh kidnapping-and the ability truly to ascertain his guilt or innocence-were compromised by perjured testimony, tampering with exhibits, and the suppression by the New Jersey state police of exculpatory evidence. People remember also that Cleveland doctor Sam Sheppard's guilty verdict was set aside because of the circus-like atmosphere of the courtroom and the shameful conduct of Cleveland's newspapers. But do they recall that he was acquitted at his second trial?

THE HARDEST QUESTIONS

Conservatives were rightly appalled when O. J. Simpson was acquitted after a screwy trial tainted by the defense's overtly racial appeals to the jury. But the moral of this story is not that black jurors will no longer convict black defendants (of the 3,652 people on Death Row, 43 percent are black), it's that juries make mistakes all the time. And sometimes-nobody knows how often-the mistakes they make are in the other direction: They convict innocent people.

In the years since Steven T. Judy was electrocuted, some 82 condemned people have had their capital-murder convictions set aside for one reason or another. A few, such as Steven Manning, a corrupt Chicago cop, didn't get a fair trial but may have been guilty and are serving time for other crimes in which their guilt is unquestioned. But many more are like poor Kirk Bloodsworth, an ex-Marine from the Eastern Shore of Maryland who had no previous criminal record-and no involvement whatsoever in the crime for which he was convicted and sentenced to death. These men are released after years on Death Row with a pardon or a halfhearted apology by the state and, if they are lucky, an inadequate monetary settlement.

"I was separated from my family and branded the worst thing possible-a child-killer and a rapist," said Bloodsworth on his release. "It can happen to anyone."

In eight of these cases, including Bloodsworth's, DNA evidence not previously available was used to free the condemned. Inevitably someone on the prosecution's side will mumble bromides about how this proves that the system "works." But that's not what it proves. These DNA cases underscore a few basic points that are far from reassuring: What about the majority of cases-the non-rape cases, mostly-in which DNA is irrelevant? Why do so many state prosecutors tout DNA as much stronger evidence than fingerprints when it points to guilt, but then put up roadblocks for defendants who want to use it to establish their innocence? Finally, how many innocent people were executed in the years before DNA tests became available?

This is the crux of the matter, and no one seems to have the answer. Republican presidential candidate George W. Bush was asked directly how he could be certain that all 120-odd executions he has presided over as governor of Texas were carried out against guilty defendants. He replied that he was, indeed, certain that nothing like what had happened in Illinois had happened in Texas on his watch. "Maybe they've had some problems in their courts," he said. "Maybe they've had some faulty judgments. I've reviewed every case, . . . and I'm confident that every case that has come across my desk, I'm confident of the guilt of the person who committed the crime."

Incidentally, Bush's brother Jeb, the governor of Florida, says the same thing, even though Florida has set aside the capital-murder convictions of some 20 Death Row inmates since 1973-more than any other state. Gerald Kogan, the former chief justice of Florida's Supreme Court, entered the debate recently, saying he's convinced that Florida has, in fact, put to death people who were not guilty. "Knowing as I do the imperfections in our system, I know that we have, on occasions in the past, executed those people who are in fact innocent," Kogan said at a Capitol Hill press conference. This led, in turn, to a challenge from Jeb Bush that Kogan name names. This is a fair point, but present- day Florida officials hardly seem preoccupied with ensuring that only the guilty are put to death. When Gov. Ryan was imposing his moratorium, the legislature in Tallahassee was in special session passing a law reducing the time convicted murderers have to appeal their cases or bring new evidence to light.

If Republican governors are at odds with one another over the issue, so too are conservatives generally. In recent weeks, Pat Robertson, George Will, and William F. Buckley Jr. have weighed in with op-ed pieces that express reservations about the death penalty over this matter of DNA and innocence.

Byron York, writing in The American Spectator, takes a different tack, arguing that innocence is a Trojan horse being used by liberals to advance a cause they have championed since the days of Darrow-abolition of capital punishment on the typical grounds: barbarism, racism, etc. The energetic Death Penalty Information Center in Washington, D.C., York points out, is virtually a wholly owned subsidiary of John R. "Rick" MacArthur, a rich left-winger whose taste in causes includes the Sandinistas and the Christic Institute.

York makes a valid point, and, as if to underscore it, all the usual suspects on the left have weighed in against capital punishment by simply topping their old arguments with a fresh concern about the risk of executing the innocent. In Hollywood, the writers of The Practice, a TV show concerning the law, turn one of their episodes into an anti- capital-punishment screed. From Chicago, Democratic representative Jesse Jackson Jr. authors a death-penalty-moratorium bill in the House. In Washington, Jackson's father, wearing one of his many hats as a CNN newsman-he hosts a show called Both Sides, a title Fidel Castro must love-interviews defense lawyer Barry Scheck, and no one else, about his book on condemned men who have been proven innocent by DNA. At one point in the decidedly one-sided program, Jackson invokes the memory of Supreme Court justice Harry Blackmun, who famously wrote in a 1994 dissent, "From this day forward, I no longer shall tinker with the machinery of death. I feel morally and intellectually obligated simply to concede that the death penalty has failed." Jackson and his lone guest keep using that word "moral" throughout the show, and the good reverend closes with the line "Let's choose life over death, but through it all, at least let's give life a chance."

In sum, it's enough to make any good conservative gag. Who wants to be on the same side as the Hollywood Left, or the two Jesse Jacksons, or Blackmun, the champion of life who wrote the Roe decision, or, for that matter, Barry Scheck, who attempted to convince the O.J. jury that DNA testing was a bunch of white man's mumbo-jumbo? The answer is that conservatives need to ignore their impulse that anything the liberal establishment approves of, they must oppose. They should instead focus on this one issue: If a democratic society executes criminals with the foreknowledge that some percentage of them are innocent, are all members of that society implicitly guilty of murder themselves? And does it matter, from a moral and theological viewpoint, that we can't know which convicts, specifically, will go to their deaths for crimes they did not commit, if we admit that some will? I submit that it does not.

THE AGONY OF DOUBT

Interviewed for a comprehensive piece published last November in The Atlantic Monthly, Bill McCollum, a conservative Republican congressman from Florida, suggested that the possibility of executing an innocent person-he insists it's a remote likelihood-is the price the nation must pay if it wants to reduce violent crime. In that same article, Chicago prosecutor William Kunkle, who secured the death penalty for serial killer John Wayne Gacy and also charged the police officers for their conduct in the Rolando Cruz case, went even further. He argued that anyone who believes man can design and implement a system that catches only the guilty is kidding himself. "Sooner or later it's going to happen," Kunkle said. "It comes with the territory. It is not humanly possible to design a system that is perfect. And if people are not prepared for the eventuality that human institutions are going to make mistakes, then they shouldn't support the death penalty, and they shouldn't elect legislators who support it."

Amen, Mr. Kunkle. Murder is a terrible crime. And in the face of the awful truth presented to us by DNA testing, what name shall we call the state-sanctioned killing of an innocent man? That's why society must not be a party to it. As Benjamin Franklin once said, "They that give up essential liberty to obtain a little temporary safety deserve neither liberty nor safety."

In 1982, a small-time Mexican-American thug named Leonel Torres Herrera was convicted of murdering two South Texas police officers. Herrera was sentenced to death. Eight years later, on the verge of his execution, a lawyer signed an affidavit saying that Herrera's brother had confessed the killings. Texas courts refused to reopen the case because the new assertion had come long after their 30-day limit for additional evidence. Herrera's case went all the way to the U.S. Supreme Court, which ruled 6 to 3 that Texas's time limitations were not unconstitutional. The case sharply divided the high court. Justice Blackmun said caustically from the bench that "the execution of a person who can show that he is innocent comes perilously close to simple murder." Sandra Day O'Connor, looking at other evidence in the case, replied in her written opinion that Herrera was not innocent "in any sense of the word."

O'Connor's clear-eyed observation should not be forgotten. Most of the time, the condemned are guilty. I certainly hope she is right in the Herrera case. But I am haunted by the possibility, no matter how remote, that she isn't. In the two decades since Steven Judy went to his richly deserved death, 631 others have been executed. I do not share George W. Bush's easy confidence that all of them were guilty. In 1981, the same year that Judy died and Leonel Herrera was apprehended, Pete Pianezzi was pardoned. Pete, then a very old man, told me when he got the news that he never really despaired that he would someday be vindicated because innocence, like truth, exists as a power of its own in the world, independent of the machinations of men. Pete died a few years ago, but his faith was greater than mine. Only God-not any living man-knows, for instance, whether Leonel Herrera really did it. All we know for sure is what the condemned man himself said as he left this world.

"Something very wrong is taking place tonight," he cried. "I am innocent, innocent, innocent . . ."