Scott Turow
Lawyer, former federal prosecutor and best-selling novelist Scott Turow. Last month, before leaving office, Illinois Gov. George Ryan commuted the sentences of all inmates on the state's Death Row. Turow served on the governor's commission to evaluate capital punishment. Turow's latest book is Reversible Errors.
Other segments from the episode on February 18, 2003
Transcript
DATE February 18, 2003 ACCOUNT NUMBER N/A⨠TIME 12:00 Noon-1:00 PM AUDIENCE N/A⨠NETWORK NPR⨠PROGRAM Fresh Airâ¨â¨Interview: Scott Turow discusses the death penaltyâ¨TERRY GROSS, host:â¨â¨This is FRESH AIR. I'm Terry Gross.â¨â¨The death penalty remains a controversial and divisive issue. Last month,â¨just before leaving office, Illinois Governor George Ryan took a stand byâ¨pardoning four condemned men and commuting the sentences of the remaining 167â¨prisoners on Illinois' death row. Two years earlier, the governor imposed aâ¨moratorium on executions and appointed a commission to examine the fairness ofâ¨the death penalty. The commission released its findings last April andâ¨recommended 80 changes in the way the death penalty is administered. Laterâ¨we'll hear from a state's attorney who served on the commission and continuesâ¨to support the death penalty.â¨â¨First we'll talk about serving on the commission with Scott Turow. Turow is aâ¨lawyer and the author of several best-selling legal thrillers includingâ¨"Presumed Innocent." His latest novel, "Reversible Errors," is about a lawyerâ¨trying to exonerate a man facing imminent execution.â¨â¨Hi, we're just having technical problems with our interview, so we'll haveâ¨that for you in just a few seconds. I spoke to Scott Turow a few days ago,â¨and we'll have that for you momentarily. In the meantime, we're all happy toâ¨be here at our studios in Philadelphia, where we're still digging out of theâ¨blizzard.â¨â¨Well, as we're waiting for the tape, I should mention that looking through theâ¨window in Philadelphia, I see piles of snow, and it's just one of those thingsâ¨in live radio, you know, that occasionally something goes wrong, as it isâ¨going wrong right now, but we'll have that for you momentarily.â¨â¨And here is our interview with Scott Turow on the death penalty.â¨â¨Mr. SCOTT TUROW (Author, "Reversible Errors"): I know that when I was askedâ¨to protest the execution of John Wayne Gacy, who had killed 33 young men inâ¨the most horrible means imaginable, and then buried their tortured bodiesâ¨under his house, that I refused to join in the protest. I couldn't callâ¨executing Gacy an injustice. So I was never settled in my own mind, though,â¨whether capital punishment, while just in terms of my own moral lexicon,â¨whether it was wise as a matter of legal procedure and a way to run a society.â¨â¨GROSS: Now when you were prosecuting cases, there was no federal deathâ¨penalty at the time, and you were a federal...â¨â¨Mr. TUROW: Correct.â¨â¨GROSS: Assistant US attorney.â¨â¨Mr. TUROW: Correct.â¨â¨GROSS: But then you became a defense attorney...â¨â¨Mr. TUROW: Right.â¨â¨GROSS: ...with a private practice.â¨â¨Mr. TUROW: Right.â¨â¨GROSS: And by this time there was a death penalty. Did you have cases whichâ¨were capital cases in which you were defending the person?â¨â¨Mr. TUROW: Well, my exposure to capital punishment really came in a couple ofâ¨doses. For many years I represented a man named Alex Hernandez who, alongâ¨with his more celebrated co-defendant, Rolando Cruz, had been tried, convictedâ¨and sentenced to death once. Their case was reversed and Cruz was retried,â¨sentenced to death again, Hernandez to 80 years. And I came in at the pointâ¨that Hernandez had been sentenced to 80 years, so I was handling the appealâ¨from a capital prosecution, but my client was not death sentenced; hisâ¨co-defendant was. The great controversy came after both Hernandez and Cruzâ¨had been convicted and sentenced to death when another man, Brian Dugan,â¨confessed that he, in fact, had committed the crime for which these two menâ¨were then on death row, a claim in Dugan's case that was obviously buttressedâ¨by the fact that he had committed other murders, one of which nearly identicalâ¨to the crime involved for Cruz and Hernandez.â¨â¨And the response of the prosecutors to this new information about Dugan wasâ¨certainly disappointing to me as a defense lawyer. They resisted Dugan'sâ¨confession for a decade, attempting to debunk it, calling him a liar. Whenâ¨they couldn't prevail any longer on the idea that he was uninvolved because ofâ¨DNA tests, then they started to suggest that Cruz and Hernandez must haveâ¨committed the crime with him. And as I say, it was a classic example ofâ¨watching prosecutors get dug into a theory and then basically losing, in myâ¨opinion, any sense of boundary in trying to vindicate that original judgment.â¨â¨GROSS: So what was the final outcome in this case?â¨â¨Mr. TUROW: Well, the final outcome is complicated, but the short answer isâ¨that Cruz and Hernandez are free. Seven individuals, four police officers andâ¨three prosecutors were indicted for conspiring to obstruct justice in the Cruzâ¨case. They were tried and they were acquitted, but the county reached aâ¨multimillion-dollar civil settlement with Hernandez, Cruz and their one-timeâ¨co-defendant, a man named Stephen Buckley, who had been indicted with themâ¨originally.â¨â¨GROSS: So was this case a turning point for you in terms of your opinionsâ¨about the death penalty?â¨â¨Mr. TUROW: The case was a turning point for me in my opinions about theâ¨justice system. Like most people who have been prosecutors, I always assumedâ¨that I had certainly never taken anybody to trial whom I thought was innocent,â¨and I really believed that the justice system operated, perhaps not perfectly,â¨but I thought it was extremely unlikely that you could convict an innocentâ¨person let alone once, but the idea that it could be done twice seemedâ¨completely ridiculous and inconceivable to me. And I think there's, you know,â¨something in the nature of the kinds of cases that end up as capital cases,â¨cases in which the death penalty is sought, that makes them more prone toâ¨convict innocent people.â¨â¨GROSS: What is that?â¨â¨Mr. TUROW: It's sort of a paradox that troubles the capital system. Theâ¨cases in which capital punishment is supposed to be sought are, you know, toâ¨borrow an often-used phrase most recently employed by the Virginia prosecutorâ¨who's trying the Beltway sniper case, it's supposed to be the worst of theâ¨worst. These are the most offensive, most repellant crimes whose facts areâ¨often deeply upsetting. In the case of Hernandez and Cruz, a 10-year-old girlâ¨had been abducted from her home in broad daylight, sexually abused and thenâ¨beaten to death. And the problem is that these cases stir up deep anxietiesâ¨and enormous anger, and that combination of anxiety and anger puts pressure onâ¨police and prosecutors to come up with a suspect, and also makes it hard forâ¨judges and juries to make dispassionate decisions in these cases. And theâ¨irony is that the worse the case the more likely you are--the way our systemâ¨operates--to convict innocent people.â¨â¨GROSS: What are some of the things that you saw when you served on theâ¨governor's commission investigating the death penalty that affected your pointâ¨of view about the death penalty?â¨â¨Mr. TUROW: Well, you know, in this state we've now had 17 people who haveâ¨been sentenced to death and later legally absolved, in most cases withâ¨convincing proof of innocence. And you really sit back and you go, `How couldâ¨this happen and how could it happen so often?' And certainly the largestâ¨problem is the one that I just identified, at least in my opinion, which isâ¨that, you know, the cases themselves are basically a trap for the innocentâ¨because they're so emotional.â¨â¨But beyond that, in these 17 cases in Illinois, the certainly most prevalentâ¨problem was what you'd have to call false confessions. You know, as aâ¨prosecutor, you sort of subscribe to the belief that nobody would ever confessâ¨to a crime they didn't commit. And it turns out that there are variousâ¨circumstances where that does happen.â¨â¨GROSS: You mean because it's beaten out of them?â¨â¨Mr. TUROW: Well, you know, beating is one thing. You know, Gary Gauger,â¨though, who's one of the 13, or one of the now 17--excuse me--but Gary Gauger,â¨whose case is dramatized in the play "The Exonerated." Gauger found theâ¨bodies of his parents and was immediately taken by the police as a suspect.â¨He was then interrogated for 12 hours, and in that state of mind beganâ¨speculating about how the crime might have occurred and the police treatedâ¨that as a confession. So you're really looking at interrogation techniquesâ¨there that risked false statement. That happened more than once.â¨â¨That was certainly something that was true in Hernandez's case as well. Youâ¨know, he made constant wild statements. Alex's IQ was debated, but nobodyâ¨thought it was much above 80, and he was constantly put in circumstances whereâ¨he was trying to help the police in saying absolutely goofy things, but theâ¨police ultimately picked and chose among those statements and said, `Well,â¨this proves that he's guilty.'â¨â¨GROSS: You pointed out that some people support the death penalty because itâ¨suits their sense of moral proportion, that a serious and heinous, repulsiveâ¨crime, a monstrous offense, should also have the most severe penalty,â¨execution.â¨â¨Mr. TUROW: Right.â¨â¨GROSS: But after research and after serving on this commission, I think you'dâ¨no longer think that that sense of moral proportion really holds up.â¨â¨Mr. TUROW: The problem with it is that you can't carry it out in practice.â¨It puts an enormous burden of precision on the justice system. If youâ¨sentence to death people who are not guilty or whose crimes are less graveâ¨than other people who get life sentences, for example, then you have notâ¨reinforced any kind of proportionate morality; you've undermined it. And inâ¨point of fact, that's exactly what we do. Certainly we did commissionâ¨research in Illinois that showed differential treatment, for example, not justâ¨based on race, which is a complicated subject, but geography, gender. All ofâ¨these things change the rates at which people get sentenced to death, andâ¨certainly race is another factor, although it doesn't operate so much on theâ¨skin color of the defendant so much as on the skin color of the victim. Butâ¨again, if you kill a white person in this society, or at least in the state ofâ¨Illinois, historically you're three and a half more times likely to get aâ¨death sentence than if you kill somebody black.â¨â¨GROSS: And if you kill them in a rural area, you're more likely to get theâ¨death penalty than in the city.â¨â¨Mr. TUROW: Five times more likely in a rural area. I think it's two and aâ¨half times more likely if you kill a woman, half as likely if you are a woman.â¨All of these factors play in, and you think that it's ultimate punishment forâ¨ultimate evil, but it ends up being far more capricious than that.â¨â¨GROSS: My guest is lawyer and best-selling novelist Scott Turow. We'll talkâ¨more after a break. This is FRESH AIR.â¨â¨(Soundbite of music)â¨â¨GROSS: My guest is Scott Turow. He's a lawyer and the author of severalâ¨best-selling legal thrillers. We're talking about his experiences serving onâ¨an Illinois state commission to reform the death penalty.â¨â¨Well, one of the problems with the system is that people who have beenâ¨convicted turned out to not have done the murder, and one of the reasons whyâ¨we know that is that after the fact, DNA has been used in the reinvestigationâ¨of certain cases and...â¨â¨Mr. TUROW: Right.â¨â¨GROSS: ...it's shown that the person who was found guilty didn't do theâ¨crime. So in the short term, DNA evidence is an argument against the deathâ¨penalty, because we're proving that people were unjustly convicted. You couldâ¨argue that in the long term, DNA evidence will help support the death penaltyâ¨because now we'll be more certain that the people convicted of a crimeâ¨actually did the crime. Do you think that your point of view about the deathâ¨penalty will change as DNA becomes more widely used?â¨â¨Mr. TUROW: Well, I think that the argument you just made is, unfortunately,â¨specious. DNA has sort of exposed the tip of the iceberg. It has shown usâ¨that in many, many cases of violent crimes, these kind of cases that exciteâ¨the emotions, we've convicted the wrong people. The Central Park jogger caseâ¨is, you know, an example from outside of Illinois. But laypeople tend to makeâ¨the assumption that, `Well, you have DNA in every case.' In point of fact,â¨you do not have DNA in every case. Generally speaking, there's not alwaysâ¨genetic evidence left behind. You know, it's got to be blood, saliva, semen,â¨something like that.â¨â¨So while DNA has exposed in a really troubling way the fallacies of the system,â¨it is not the case that we're going to be able to tell innocent from guiltyâ¨simply because of that scientific innovation or any other. To a great extentâ¨the system still depends upon the testimony of eyewitnesses, of accomplices.â¨You know, those are the means we've got, and I'm not proposing that we shutâ¨down the criminal justice system, but we have to be aware of its vagaries.â¨â¨GROSS: Do you think that the death penalty has looked different to you fromâ¨the point of view of prosecutor than it's looked from the point of view ofâ¨defense attorney?â¨â¨Mr. TUROW: Sure. I mean...â¨â¨GROSS: What are some of the differences?â¨â¨Mr. TUROW: Well, bear in mind--and I try to remind myself of this all theâ¨time--we talk appropriately about the propensity of the innocent to beâ¨convicted in capital cases, but the reality, of course, is that mostâ¨defendants who are convicted in the United States are still guilty, and whenâ¨you are a prosecutor, your day-to-day experience is not of struggling toâ¨convict the innocent, but, of course, struggling against all of the barriersâ¨that the system imposes, to convict the guilty. But when you get on the otherâ¨side, and you're suddenly charged with dealing with an individual case, ofâ¨course it can look much different.â¨â¨And one of the real problems we've got in this country is that we'reâ¨basically, especially in our big cities, engaged in a system of wholesaleâ¨justice.â¨â¨GROSS: What do you mean by wholesale justice?â¨â¨Mr. TUROW: The demands on the system are huge. You go into, for example, aâ¨courtroom in the state courts in Chicago, every judge has got a hundred activeâ¨criminal cases on his docket; at least a hundred, many of them involving lotsâ¨of serious violence. You can't take all those cases to trial. You have toâ¨get guilty pleas. There's a tremendous impetus to sort of push those casesâ¨through the system. By the same token, we can sit and talk about DNA andâ¨scientific evidence, but if you're a police officer who's dealing with crimeâ¨by volume, the easiest way to clear a case is to get a confession, not to goâ¨out and take DNA specimens and wait six weeks for the results to come back.â¨And, you know, in that context, if there's a premium, for example, onâ¨confessions, and there is, that's an obvious temptation to employâ¨overaggressive means in getting those confessions.â¨â¨GROSS: The commission to reform the death penalty that you served on at theâ¨request of Governor Ryan of Illinois issued a bunch of recommendations.â¨Select what you consider to be the most important ones.â¨â¨Mr. TUROW: Well, there were several. The big-ticket items in my mind,â¨though, are videotaping of interrogations. That means that as soon asâ¨somebody is a suspect in a murder that everything the police do with thatâ¨person in the station house is videotaped so that eliminates both the coercionâ¨and the claims of coercion. We recommended greatly reducing the eligibilityâ¨factors in Illinois. When the death penalty was passed here in 1977, thereâ¨were seven factual circumstances under which capital punishment could beâ¨sought; there are now 20, and one of them, felony murder, has gone from nineâ¨felonies that made you eligible to 16. We recommended dramatically reducingâ¨that number and getting rid of felony murder.â¨â¨We recommended a statewide commission review the election of any of the 102â¨state's attorneys in Illinois who have the power now to seek the deathâ¨penalty. We did that to make sure that there was better uniformity in the wayâ¨that laws are applied so you don't get the death penalty being sought fiveâ¨times more often in rural areas. We recommended changing the way eyewitnessâ¨identifications and lineups are conducted. And then we also sort of said toâ¨the people of Illinois, `If you want to have a death penalty, you must beâ¨willing to pay for it.' The fact of the matter is that capital punishment isâ¨more expensive than the alternatives. You have to be willing to fundâ¨defenses, and the state has made a good start in that direction. You have toâ¨have qualified lawyers who, generally speaking, require compensation. Youâ¨have to have experts. You have to have psychologists. The state has to payâ¨for that in most instances. You have to have better training for police, forâ¨judges, for defense lawyers.â¨â¨GROSS: It's interesting that you say that, because I think most people assumeâ¨if you kill the offender it's cheaper than maintaining them in prison.â¨â¨Mr. TUROW: Right. Right. Just one of many false assumptions about the deathâ¨penalty. This has been studied in a number of different jurisdictions. Theâ¨most recent one was done in our neighboring state of Indiana, where theyâ¨figured that in terms of present dollars, it's about 35 percent more expensiveâ¨to impose a capital sentence on somebody.â¨â¨GROSS: Have you spent much time on death row?â¨â¨Mr. TUROW: Well, I've certainly been there, yeah. You know, I don't knowâ¨what qualifies as much time, but I've probably visited death row 10, 12 times,â¨and, you know, I've stood in the execution chamber where it now stands inâ¨Illinois. So I've been there, yes.â¨â¨GROSS: What were your reasons for standing in the execution chamber, and whatâ¨was the impact of that on your thinking?â¨â¨Mr. TUROW: Well, the execution chamber I wanted to see as a member of theâ¨commission. I've never seen an execution, and I was grateful, frankly, that Iâ¨didn't have the opportunity while I was sitting on the commission, because Iâ¨probably would have forced myself to take advantage of it. But I wanted to goâ¨to the death chamber in Illinois to just sort of confront this. Because theâ¨fact of the matter is that this is an enormously cruel punishment as it isâ¨imposed. You take people who've done, in many, many instances, unspeakableâ¨things, but they have been subdued at that point. Many of them actuallyâ¨change their behavior in the structure of a prison environment. And, youâ¨know, you take a subdued, captured individual and kill them, and it's deeplyâ¨unsettling to the correctional officers who are involved in this. And that'sâ¨not to gainsay their belief in capital punishment. I think for most of themâ¨they do believe in what they're doing.â¨â¨GROSS: Scott Turow will talk more about rethinking the death penalty in theâ¨second half of the show.â¨â¨I'm Terry Gross, and this is FRESH AIR.â¨â¨(Announcements)â¨â¨(Soundbite of music)â¨â¨GROSS: Coming up, visiting death row to see the so-called poster child forâ¨capital punishment. We continue our conversation with Scott Turow. And weâ¨talk with Illinois state's attorney Mike Waller. Both served on Illinoisâ¨Governor George Ryan's commission recommending reforms to the state's capitalâ¨punishment system.â¨â¨(Soundbite of music)â¨â¨GROSS: This is FRESH AIR. I'm Terry Gross, back with Scott Turow. He's aâ¨lawyer and the author of several best-selling legal thrillers, includingâ¨"Presumed Innocent." His new book, "Reversible Errors," is about a lawyerâ¨trying to exonerate a prisoner on death row. Turow recently served on theâ¨Illinois state commission to investigate the fairness of the death penalty.â¨When we left off, he was telling us why he wanted to visit death row.â¨â¨I know one of the people you visited on death row was Henry Brisbon.â¨â¨Mr. TUROW: Right.â¨â¨GROSS: Who was he? Why'd you visit him?â¨â¨Mr. TUROW: Well, Henry Brisbon tends to be the poster child for capitalâ¨punishment in Illinois. When you talk to law enforcement professionals,â¨people in the correctional system, prosecutors, police officers, they alwaysâ¨point to Brisbon because in addition to having been convicted twice of murder,â¨one set of serial murders and another prison murder, he's got an atrociousâ¨disciplinary record, over 250 disciplinary incidents, many of them involving,â¨you know, serious acts of alleged violence, stabbings, hitting correctionalâ¨officers with two-by-fours, throwing a 30-pound dumbbell against the head ofâ¨another inmate, severely injuring him, at least according to the prisonâ¨official's allegations.â¨â¨So he is somebody whose propensity to violence and to murder is veryâ¨well-demonstrated, and certainly if you're going to execute anybody, somebodyâ¨who is a sort of living threat ought to be at the top of the list. So Iâ¨wanted to meet Brisbon, but more important, look at the supermax facility atâ¨Thames, the southern part of Illinois, just to see if it really was possibleâ¨to restrain the likes of Brisbon with conditions of confinement. Because ifâ¨you can't, I was prepared to say that execution in those cases really seems toâ¨me to be just, if not inevitable.â¨â¨GROSS: So did you feel he was adequately controlled at this prison?â¨â¨Mr. TUROW: My judgment, and based really on talking with the correctionalâ¨officials I did, was that the risks are enormously mitigated. Somebody withâ¨the kind of track record that Brisbon has is not someone with whomâ¨correctional officers are ever comfortable saying he'll never kill again. Butâ¨they acknowledge that the odds are dramatically reduced, and certainly they'reâ¨reduced enough that they're comfortable walking into the institution everyâ¨day. So I think in practical terms, supermax confinement, which is very, veryâ¨rugged, is...â¨â¨GROSS: Why don't you describe how that applies to Brisbon's situation. Whatâ¨was the supermax aspects of it? What kind of...â¨â¨Mr. TUROW: Well, supermax is what it means. Generally speaking, prisoners inâ¨the Thames facility and other supermaxes across the United States areâ¨permitted no flesh-to-flesh contact with other human beings. That means ifâ¨things go as intended, once you are sent to a supermax and until you areâ¨allowed to leave there, you never touch another human being. In Illinois theyâ¨are in cells with a punch plate front which prevents them from being able toâ¨put their hands between bars and do any mayhem that way. It's a small box ofâ¨preformed concrete. I've forgotten the dimensions exactly. I'd say roughlyâ¨8-by-10. There's almost nothing in there except a single fixture which is aâ¨combination toilet and sink, and a foam mattress over a concrete pallet.â¨â¨Once a day for about 45 minutes the doors open by remote control. You can goâ¨out, down the end of the galley way to another remote-controlled door and takeâ¨fresh air, then you go back to your cell. And five times a week you also getâ¨15 minutes to shower. And the cell itself, as I said, you know, there's aâ¨single window which is up high; it's very narrow. This is not comfortableâ¨living in any way, shape or form.â¨â¨GROSS: John Ashcroft is insisting that federal prosecutors seek the deathâ¨penalty in some cases where the prosecutors had not sought it or hadâ¨recommended against it. And this is mostly going on in the Northeast--Newâ¨York; I think Connecticut is the other state?â¨â¨Mr. TUROW: Right. Right.â¨â¨GROSS: What's your interpretation of what Ashcroft is doing and why he'sâ¨doing it?â¨â¨Mr. TUROW: I think the attorney general can look at what's happening andâ¨realize that the death penalty is not being sought by federal prosecutors on aâ¨reasoned and consistent basis. And so he's forcing them to apply it moreâ¨often in the hope that it will become more reasonable and more consistent.â¨And this is a fairly typical response. It's where Illinois was after theâ¨re-enactment of the death penalty in 1977. And the result is you becomeâ¨overinclusive in the application of the death penalty. You begin applying it,â¨in point of fact, to cases where subordinate prosecutors have said the deathâ¨penalty ought not be applied. How that ends up being more just is reallyâ¨confounding to me.â¨â¨You force the line prosecutor's hand, say, `You've got to seek death in thisâ¨case.' And the line prosecutor is already on the record saying, `Well, weâ¨shouldn't do it.' And, again, I don't know if that makes the people who areâ¨listening here feel more confident about the application of the death penalty.â¨â¨GROSS: Now that we're facing terrorism and trials of people accused ofâ¨terrorism, is your thinking related to terrorism and the death penalty anyâ¨different from your thinking pertaining to criminal trials, basic criminalâ¨trials and the death penalty?â¨â¨Mr. TUROW: Well, you know, when you say the state should not kill, the nextâ¨question is: Well, what do you do about war? And I do accept war asâ¨inevitable. As a lawyer, I say that the issue of capital punishment isâ¨whether the state should kill its own citizens, not whether it should kill itsâ¨foreign enemies. Sometimes it has to do that, and for that reason, I draw aâ¨lawyerly distinction between domestic crime and acts of foreign terrorism.â¨â¨GROSS: So you could endorse a death penalty for foreign terrorists who'veâ¨committed actions against the United States sooner than for Americanâ¨criminals.â¨â¨Mr. TUROW: I think the question of whether we execute Osama bin Laden is aâ¨much different question than whether we execute the people on our death rows.â¨â¨GROSS: Now that you've served on the commission to reform the death penalty,â¨is the kind of case that you want to take on different?â¨â¨Mr. TUROW: Well, actually, my own desire is I want to get out of the world ofâ¨capital punishment, both as a writer and as a lawyer for a while. It's very,â¨very consuming emotionally, and I would like to move on, you know, into otherâ¨matters.â¨â¨GROSS: Yet your new novel has to do with capital punishment.â¨â¨Mr. TUROW: Right.â¨â¨GROSS: And is that a result of having served on this commission? Which cameâ¨first, "Reversible Errors," your new novel, or the commission?â¨â¨Mr. TUROW: No, actually, "Reversible Errors" was the one impediment to myâ¨accepting a place on the commission when it was suggested that I might beâ¨considered, because I'd already started the novel. And that sprang from, youâ¨know, 10 years of experience as a lawyer involved with capital prosecutions.â¨And ultimately I think we all sat down and figured, `Well, there is no actualâ¨conflict here,' but I resolved personally that I wouldn't publish "Reversibleâ¨Errors" until after the commission had issued its report.â¨â¨GROSS: Well, Scott Turow, thank you very much.â¨â¨Mr. TUROW: Thank you, Terry.â¨â¨GROSS: Scott Turow is a lawyer and best-selling novelist. His latest legalâ¨thriller is called "Reversible Errors."â¨â¨Coming up, we talk with Lake County, Illinois, state's attorney Michaelâ¨Waller, who also served on the commission to investigate the fairness of theâ¨death penalty. He continues to support capital punishment.â¨â¨This is FRESH AIR.â¨â¨(Soundbite of music)â¨â¨* * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * *â¨â¨Interview: Mike Waller discusses why he supports the death penaltyâ¨TERRY GROSS, host:â¨â¨Before leaving office last month, Illinois Governor George Ryan commuted theâ¨sentences of all prisoners on the state's death row. Two years earlier, theâ¨governor imposed a moratorium on executions and appointed a commission toâ¨investigate the fairness of the death penalty system. Earlier we spoke withâ¨Scott Turow about serving on the commission and how the experience led him toâ¨oppose the death penalty.â¨â¨Mike Waller served on the commission and continues to support the deathâ¨penalty. Waller is the Lake County state's attorney. It's the third-largestâ¨county in Illinois. I asked Waller about the commission's recommendation toâ¨limit the kinds of cases eligible for the death penalty.â¨â¨Mr. MIKE WALLER (State's Attorney, Lake County, Illinois): Well, the majorityâ¨on the death penalty commission, the governor's commission, voted to restrictâ¨the number of eligibility factors in Illinois, basically limiting them toâ¨five. Probably the single most significant factor that was eliminated by theâ¨majority in the commission report was the total elimination of felony murder.â¨â¨GROSS: What does that mean practically?â¨â¨Mr. WALLER: Well, that means a murder committed in the course of a kidnappingâ¨or a home invasion or a rape or an abduction of a child would no longer beâ¨eligible for the death penalty under Illinois law if the recommendation of theâ¨majority of the death penalty commission was adopted by the Legislature.â¨â¨GROSS: And do you agree with that recommendation?â¨â¨Mr. WALLER: No, I voted against that. And what the majority did, in essence,â¨was to remove the most brutal and vicious types of murders from eligibilityâ¨for potential death penalty. My view is that if you're going to have theâ¨death penalty, that certainly the death penalty should apply to those types ofâ¨murders. And we had a case of a defendant in Illinois who subsequently wasâ¨executed who abducted a young woman and raped her continuously, actually hadâ¨her in the trunk of his car when he went to court here in Chicago. And it wasâ¨one of the most brutal and vicious murders, and it was just terrifying for theâ¨poor victim in this case, and under the recommendation of the majority, thatâ¨would not be a death penalty eligible case.â¨â¨You know, you can also get to the issue of whether you should have a deathâ¨penalty, and I suspect that maybe the Legislature in Illinois is going toâ¨debate that now because of what Governor Ryan did. But, you know, if you areâ¨going to have a death penalty, in my view it needs to be applicable to theâ¨most horrendous types of murders.â¨â¨GROSS: Now you've prosecuted a lot of capital cases. One of the argumentsâ¨that is often made against the death penalty, that a lot of people who faceâ¨the death penalty are poor and they can't afford a really good defense, andâ¨therefore the best case isn't made on their behalf and they're more likely toâ¨get convicted. Have you ever tried a case where you could tell that theâ¨lawyer defending the person wasn't really doing a very good job and soâ¨convicting the person was kind of a piece of cake for you?â¨â¨Mr. WALLER: No.â¨â¨GROSS: Did you ever walk away with doubts thinking that you won because ofâ¨the incompetence of the lawyer who was defending...â¨â¨Mr. WALLER: No.â¨â¨GROSS: No?â¨â¨Mr. WALLER: No. In my county--and I've tried four death penalty cases--theâ¨judges have always appointed two qualified, experienced lawyers, which is inâ¨conformity with long-standing ABA guidelines. And they've always providedâ¨sufficient funds so the defense can hire experts and do whatever investigationâ¨is necessary. So my experience in Lake County has been that it's been an evenâ¨playing field and the sides have been evenly matched.â¨â¨But what happened in Illinois was, as a result of a very intelligent andâ¨concerted effort, that all of the cases over the course of the 25 years sinceâ¨the death penalty was reinstituted were all lumped together and the horrorâ¨stories that existed with some of the cases--I mean, and there certainly wereâ¨some problem cases, and we studied those in detail, as I mentioned, on theâ¨death penalty commission, but they were all lumped together with cases whereâ¨there wasn't any issue as to guilt or innocence, and there wasn't any issue asâ¨to competent defense attorney of sufficient funding made available so thatâ¨the defense could explore defenses and provide a reasonable defense to theâ¨case.â¨â¨GROSS: How many of the people who you've convicted have actually beenâ¨executed?â¨â¨Mr. WALLER: Well, not that I personally prosecuted, none have, but two Lakeâ¨County cases since the death penalty was reinstituted in 1977 in Illinois haveâ¨resulted in executions.â¨â¨GROSS: And you went to one of those executions.â¨â¨Mr. WALLER: Right. One of the defendants was convicted and given the deathâ¨penalty in three states and he was executed, but he was executed in Ohio. Heâ¨wasn't executed in Illinois. The other defendant from a Lake County case wasâ¨executed in Illinois, and I did go to the execution.â¨â¨GROSS: Why'd you go?â¨â¨Mr. WALLER: I went because as the state's attorney in Lake County, I made theâ¨decision--although I was not the state's attorney when he was tried, but I wasâ¨the state's attorney for most of the time when the case was in litigation, andâ¨as you know, the guilty verdict and the imposition of the death penalty isâ¨really only the start of the legal process in a death penalty case. So I hadâ¨made the decisions throughout that this was a case--and I had gone downâ¨to--what used to be the last step in the capital litigation process is aâ¨hearing before the Prisoner Review Board in which the defendant requestsâ¨clemency from the governor. I had gone down and testified and presented theâ¨case, and I thought as the state's attorney, the person who was ultimatelyâ¨responsible for the decision, that I should go to the execution.â¨â¨It was certainly not something that I took any pleasure in doing or did forâ¨any other reason than I thought it was my responsibility and duty to do it. Iâ¨can remember clearly the events of that evening, and probably always will.â¨â¨GROSS: What kind of execution was it, electric chair or...â¨â¨Mr. WALLER: No, it was...â¨â¨GROSS: ...lethal injection?â¨â¨Mr. WALLER: ...lethal injection.â¨â¨GROSS: Many critics of the death penalty, including Scott Turow, feel thatâ¨the death penalty has never been administered fairly, that there are racialâ¨differences, gender differences, class differences, rural vs. urbanâ¨differences, and that all those inequities within the system make itâ¨impossible to support the death penalty. Do you agree that there areâ¨inequities within how the death penalty is administered, and how does thatâ¨figure into your opinion on the death penalty, your support of it?â¨â¨Mr. WALLER: Well, I think there are some differences in different parts ofâ¨the state as to how the death penalty is administered. That has not affectedâ¨my support for the death penalty. I am a state's attorney in a county that'sâ¨very diverse and I actually seek the death penalty infrequently. I was theâ¨first assistant state's attorney for a number of years before I became aâ¨state's attorney, and my predecessor, Fred Foreman, did not seek the deathâ¨penalty very often. We're very careful; we look for reasons not to seek theâ¨death penalty.â¨â¨You know, it's sometimes hard to counter the arguments of the people that areâ¨against the death penalty because they sort of lump everything together. Youâ¨know, I suppose the only way to really fairly administer the death penalty isâ¨to seek it much more often, for every defendant that commits one of theseâ¨terrible crimes. The fact of the matter is that a lot of times decisions areâ¨made not to seek the death penalty in cases that the death penalty could beâ¨obtained, which in my view is not necessarily a bad thing, but on the otherâ¨hand it's then used by the anti-death penalty people to say, `Aha, this is notâ¨fairly administered.' So you're sort of damned if you do and damned if youâ¨don't if you're the person making the decision as far as the death penaltyâ¨when dealing with the anti-death penalty people.â¨â¨And I don't begrudge the people that are against us. No, I think there'sâ¨certainly a very significant issue, and we're probably the only modernâ¨industrial Western state that has the death penalty. But that's an issue thatâ¨needs to be debated in the Legislature.â¨â¨GROSS: Were you offended or angry when Governor Ryan turned around the deathâ¨penalty...â¨â¨Mr. WALLER: Yes, I was. I was offended and I suppose I was angry in what heâ¨did. What he did really undid 25 years of litigation, and like I mentioned,â¨he lumped together all the cases and he had preceded his decision by--inâ¨Illinois we have a process where there's--a petition for clemency is filed andâ¨we had hearings in 140-some-odd cases this fall which involved a tremendousâ¨amount of work and involved a tremendous amount of heartache and emotionalâ¨reaction on the part of the family members of the victims.â¨â¨And all this evidence was presented to the Prisoner Review Board, which madeâ¨recommendations to the governor, and according to the reports, although theâ¨specific recommendations are confidential, they recommended that no action orâ¨no commutation be taken in the overwhelming majority of the cases. Andâ¨according to published reports, they recommended that there be some actionâ¨taken in fewer than 10 cases.â¨â¨And then Ryan, who had continuously assured everybody that he wasn't going toâ¨issue blanket commutation, did. And the way he did it was to hold like a pepâ¨rally at Northwestern University, which was televised on TV. And it wasâ¨just--it was very poorly thought out, considered, and the way he did it was--Iâ¨describe it as a travesty of justice, which I think it was and it is.â¨â¨GROSS: Is there a part of you that respects the governor for acting on hisâ¨conscience even though you disagree with him?â¨â¨Mr. WALLER: I'm not sure that he--you know, everything you read about him andâ¨see the way he administered things and the way he ran the Office of Secretaryâ¨of State and the way he acted as governor, you know, I--if a governor like Jimâ¨Edgar or Jim Thompson, whose integrity and credibility is unquestioned, hadâ¨made the decision, I think maybe I would say, `OK, I disagree with them but Iâ¨certainly respect them.' But I will only say that I disagree with George Ryanâ¨and I have no respect for his decision.â¨â¨GROSS: My guest is Mike Waller, Lake County, Illinois, state's attorney.â¨We'll talk more about the death penalty after a break. This is FRESH AIR.â¨â¨(Soundbite of music)â¨â¨GROSS: My guest is Mike Waller, Lake County, Illinois, state's attorney.â¨We're talking about his experiences serving on a commission appointed byâ¨Illinois Governor George Ryan to investigate the fairness of the death penaltyâ¨system. Last month, just before leaving office, the governor commuted theâ¨sentences of all prisoners on death row.â¨â¨Since everybody on death row had their death sentences commuted by Governorâ¨Ryan, if you get a case tomorrow that you think should be tried as a capitalâ¨case, would you go for the death penalty or just not bother?â¨â¨Mr. WALLER: Well, what I will do, and what I have done--I actually had oneâ¨case since then where I made the decision--is to use the same approach thatâ¨I've always used, which is to thoroughly investigate the facts andâ¨circumstances of the case and thoroughly investigate the background of theâ¨defendant, to consult with everybody involved in the case and then make aâ¨decision. And actually I did that in a case after Ryan commuted the sentencesâ¨of the 167 people on death row, and my decision was not to seek the deathâ¨penalty. But my approach to this is going to be the same as it's always been,â¨is to try to make a reasoned and informed judgment. And it's not just, youâ¨know, don't bother, 'cause it's too serious and difficult of a question, andâ¨in the appropriate case, I would seek the death penalty.â¨â¨GROSS: Attorney General John Ashcroft is insisting that the death penalty beâ¨applied in 10 cases in New York even though the US attorneys there decided toâ¨forgo the death penalty. And Ashcroft is overturning what they wanted.â¨What's your opinion about how he is handling this? And what do you think theâ¨point of it is?â¨â¨Mr. WALLER: Well, I think he should rely on the judgment of the US attorneysâ¨in the districts that made those decisions. They're in much closer contactâ¨with the facts of the case and probably the realistic possibility of receivingâ¨the death penalty. I think Ashcroft ought to defer to their consideredâ¨judgment. He obviously has his own agenda.â¨â¨GROSS: It seems to you like an agenda? And what do you think the agenda is?â¨â¨Mr. WALLER: Well, he's obviously very pro-death penalty. I mean, personallyâ¨having made the decision and having had a great deal of experience, you know,â¨I don't think that he ought to countermand the considered judgment of the USâ¨attorneys that made those decisions. They're not exactly bleeding heartâ¨liberals and, you know, I'm confident that they looked at all the facts andâ¨circumstances and a lot of other issues involved in it and made a reasonableâ¨decision. And I think Ashcroft should have gone along with it.â¨â¨GROSS: You served on Governor Ryan's commission to reform the death penalty.â¨What do you think is the greatest contribution that commission made?â¨â¨Mr. WALLER: Well, I think that the report and the issues that we discussedâ¨certainly provide a framework for a discussion about all the issues thatâ¨surround and impact the death penalty. And it'll be the basis for discussionâ¨here in Illinois and other parts of the country. But the fact of the matterâ¨is that, to the people that are against the death penalty, none of this makesâ¨any difference because the only thing that they want to see happen is not toâ¨have a death penalty, which again, as I've said I think a couple of times, Iâ¨think is a reasonable view to have. And if the Legislature in this stateâ¨decided that we weren't going to have a death penalty, that would be the lawâ¨and that would be fine with me.â¨â¨When I first worked as a prosecutor in the 1970s, we didn't have a deathâ¨penalty. And, you know, the system operated fine and cases were effectivelyâ¨prosecuted and the lack of a death penalty did not hamstring the system.â¨â¨GROSS: Did you prefer working in an environment where you didn't have that onâ¨your head, where it wasn't your responsibility to decide whether or not youâ¨should call for taking somebody's life?â¨â¨Mr. WALLER: Well, I wasn't the person making the decisions in those days, butâ¨it certainly was easier to be the state's attorney in a state or at a timeâ¨when we didn't have the death penalty than when we do have the death penaltyâ¨because the most difficult decision that a state's attorney or a districtâ¨attorney or a prosecutor ever has to make is whether or not to seek the deathâ¨penalty. But as far as preferring it, you know, I took an oath to enforce theâ¨law, and that's the law of the state of Illinois. So I feel that it's my dutyâ¨and my obligation to consider that in the appropriate circumstances.â¨â¨GROSS: Well, Mike Waller, I want to thank you very much for talking with us.â¨â¨Mr. WALLER: OK. Well, thank you.â¨â¨GROSS: Mike Waller is the Lake County, Illinois, state's attorney. He servedâ¨on the governor's commission to investigate the fairness of the death penaltyâ¨system. Earlier we heard from Scott Turow, who also served on the commission.â¨â¨(Credits)â¨â¨GROSS: I'm Terry Gross.