It was the examination of this phenomenon - the assignment of
death sentences to those innocent of the crimes of which they are
accused - that caused two writers whose careers began in criminal
justice to rethink their own views about the death penalty.
Author Scott Turow worked as a federal prosecutor before
writing his first bestselling novel and representing death penalty
inmates on appeal.
In his most recent legal assignment, he served on a commission
appointed by the governor of Illinois to examine the state's death
penalty law.
He reflects on the experience in his new book, "Ultimate
Punishment" (Farrar, Straus and Giroux).
Mark Fuhrman, best known as a detective in the O.J.
Simpson case, focused on Oklahoma's capital punishment record in
"Death and Justice" (William Morrow).
Excerpts of the Monitor's interviews with each author follow.
Q: Even while representing death-row defendants, you wrote
that you were agnostic on the death penalty? What did you
mean?
ST: I could never make up my mind. I was against it. I was
for it. Finally, I decided I didn't know what to think.
Q: How did your work on the Illinois governor's commission
change your view on capital punishment?
ST: It allowed me to look at the system as a whole instead
of focusing on individual cases. Instead of asking whether the death
penalty is just in this case or that case, I had to ask whether the
system could administer the death penalty in a way that was fair,
just, and accurate. Looking at the entire system was a
revelation.
I learned I was looking at the wrong question. The real question
is, 'Can you construct a death penalty that only reaches the right
cases without bringing in the wrong cases - the cases where people
are innocent or undeserving?
The more I came to understand the dynamics of that system, the
more I began to realize the answer is no, we'll never do it.
Q: Why not?
ST: We'll never do it because we want something from
capital punishment that we don't want from any other crime.
We want the death penalty solely for symbolic purposes to
vindicate our own view of what is just. For that reason, there is no
margin for error.
It's probably no revelation to say we have innocent people
convicted of lesser offenses. Naturally, we find it deplor- able,
but we're not going to junk the criminal justice system.
The sad fact that it takes place with the death penalty is more
alarming because there is no tangible benefit except for the
symbolic importance to the public and victims' families. We can get
the same benefits from putting them in prisons for the rest of their
lives.
Q: What's the result if a state enacts all the fixes your
commission proposed in Illinois?
ST: It will unquestionably give us a better death-penalty
system that gives us fewer mistakes and is somewhat less
arbitrary.
There's no question the death penalty can be made better - we can
assure [that] every defendant has highly competent lawyers, impose
standards on the decision to seek the death penalty and layers of
review, demand videotaping of full interrogation of homicide
suspects, get rid of felony murder.
You can do a host of things we recommended in Illinois. It would
definitely improve the application of the death penalty, but we will
still convict a certain number of innocent persons, and we have a
higher propensity to do that in capital cases. The nature of offense
is so awful it tends to make us less rationale.
Q: You suggest the courts will eventually reject the death
penalty. Why?
ST: It's a race between the courts and technology. Medical
advances may call the rationale for the death penalty into question.
If we could reliably make people less violent, then the arguments
for executing them is going to begin to fade away. It would make it
easier to imprison even the most violent offenders.
Q: How has your attitude toward the death penalty changed
since you were a police officer?
MF: I used to believe the death penalty cases were
investigated better than anything else. What I found was exactly the
opposite. They're not investigated as well as I'd investigate a
simple robbery.
Once we've gotten someone on the hook and we believe they've
committed the crime, then [prosecutors and police believe] it should
be good enough for everybody else.
Q: How likely is it that Oklahoma executed an innocent
person?
MF: Very likely. In fact, I think it's so likely that [it
explains why] Oklahoma refuses to give relatives of executed inmates
the DNA tests so they can find out for sure. What are they afraid
of?
Q: What kind of pressure do prosecutors and police
face?
MF: It's the ultimate case any attorney will go into court
to prosecute or defend. When you seek the death penalty, it means
this is the most heinous, atrocious murder committed in your
jurisdiction and you must win. It's not 'I hope we win,' it's 'we
must win.'
There is no conservative state where your sheriff or prosecutor
will get away with saying, 'I'm opposed to the death penalty, and
it's simply not right.'
Q: What do detectives do wrong? Will you talk about operating
on hunches?
MF: When detectives go to a crime scene, you're certainly
going to make conclusions that end up with some beginning theories
about the case, but as you collect evidence and interview people and
do your work, you can develop new ideas about what happened and you
need to be open to that.
If you go to a crime scene and omit all evidence that might
disprove that initial theory, you're no longer a detective. You're
simply someone who believes someone is guilty.
Q: You focus on a forensic scientist as a source for several
false convictions. What's the problem there?
MF: Forensic scientists should be absolutely blind to
anything about the investigation. They should not discuss the case.
Detectives shouldn't tell them what statements we have, don't tell
them anything.
If they work in that vacuum, an incompetent forensic scientist
won't be knowingly engaging in a case to get attention, gratify
prosecutors or detectives, or gain their own power.
