Ken Armstrong and Steve Mills, Justice Derailed. Chicago Tribune, 14 November 1999. 5-Part Series in November 1999. Part 1: Death Row justice derailed. “Capital punishment in Illinois is a system so riddled with faulty evidence, unscrupulous trial tactics and legal incompetence that justice has been forsaken, a Tribune investigation has found.” Part 2: Inept defenses cloud verdict. “Since Illinois reinstated capital punishment in 1977, 26 Death Row inmates…have received a new trial or sentencing because their attorneys’ incompetence rendered the verdict or sentence unfair, court records show.” Part 3: The jailhouse informant. “Even prosecutors acknowledge that jailhouse informants are among the least reliable of witnesses. Yet in Illinois, at least 46 inmates have been sent to Death Row in cases where prosecutors used a jailhouse informant, according to a Tribune investigation that examined the 285 death-penalty cases since capital punishment was reinstated in 1977.” Part 4: A tortured path to Death Row. ” For police and prosecutors, few pieces of evidence close a case better than a confession. After all, juries place a remarkable degree of faith in confessions; few people can imagine suspects would admit guilt if they were innocent. But, in Illinois, confessions have proved faulty.” Part 5: Convicted by a hair. “[O]ver the last decade or so, hair-comparison evidence has been exposed as notoriously untrustworthy.”
Part 1: Death Row justice derailed.
Capital punishment in Illinois is a system so riddled with faulty evidence, unscrupulous trial tactics and legal incompetence that justice has been forsaken, a Tribune investigation has found.
With their lives on the line, many defendants have been represented by the legal profession’s worst, not its best.
They have been given the ultimate punishment based on evidence that too often is inconclusive, and sometimes nearly nonexistent.
They have seen their fates decided not by juries that reflect the community as a whole but by juries that include not a single member of their racial minority.
They have been condemned to die in trials so rife with error that nearly half of the state’s death-penalty cases have been reversed on appeal.
Illinois has claimed the dubious distinction of having exonerated as many Death Row inmates as it has executed. But many of the circumstances that sent 12 innocent men to Death Row have been documented by the Tribune in numerous other capital cases.
In the first comprehensive examination of all 285 death-penalty cases since capital punishment was restored in Illinois 22 years ago [1977], the Tribune has identified numerous fault lines running through the criminal justice system, subverting the notion that when the stakes are the highest, trials should be fail-safe.
The findings reveal a system so plagued by unprofessionalism, imprecision and bias that they have rendered the state’s ultimate form of punishment its least credible.
The Tribune investigation, which included an exhaustive analysis of appellate opinions and briefs, trial transcripts and lawyer disciplinary records, as well as scores of interviews with witnesses, attorneys and defendants, has found that:
– At least 33 times, a defendant sentenced to die was represented at trial by an attorney who has been disbarred or suspended–sanctions reserved for conduct so incompetent, unethical or even criminal the lawyer’s license is taken away.
In Kane County, an attorney was suspended for incompetence and dishonesty. Ten days after getting his law license back in 1997, he was appointed by the county’s chief judge to defend a man’s life.
– In at least 46 cases where a defendant was sentenced to die, the prosecution’s evidence included a jailhouse informant–a form of evidence so historically unreliable that some states have begun warning jurors to treat it with special skepticism.
In one Cook County case, the word of a convicted con man, called a “pathological liar” by federal authorities, put a man on Death Row. In exchange for a sharply reduced sentence, the con artist testified that while in jail together the defendant confessed to him, even though a tape recording of their conversation contains no confession.
– In at least 20 cases where a defendant was sentenced to die, the prosecution’s case included a crime lab employee’s visual comparison of hairs–a type of forensic evidence that dates to the 19th Century and has proved so notoriously unreliable that its use is now restricted or even barred in some jurisdictions outside Illinois.
– At least 35 times, a defendant sent to Death Row was black and the jury that determined guilt or sentence all white–a racial composition that prosecutors consider such an advantage that they have removed as many as 20 African-Americans from a single trial’s jury pool to achieve it. The U.S. Constitution forbids racial discrimination during jury selection, but courts have enforced that prohibition haltingly.
– Forty percent of Illinois’ death-penalty cases are characterized by at least one of the above elements. Sometimes, all of the elements appear in a single case. Dennis Williams, who is black, was sentenced to die by an all-white Cook County jury; prosecuted with evidence that included a jailhouse informant and hair comparison; and defended, none too well, by an attorney who was later disbarred….
To win a death sentence, prosecutors in Illinois have repeatedly exaggerated the criminal backgrounds of defendants–turning misdemeanors into felonies, manslaughter into murder, innocence into guilt.
Prosecutors have lied to jurors, raising the possibility of parole when no such possibility existed.
They also have browbeaten jurors, saying they must return the death sentence, or they will have violated their oaths and lied to God….
More than 10 percent of Illinois’ death-penalty cases have been reversed for a new trial or sentencing hearing because prosecutors took some unfair advantage that undermined a trial’s integrity, according to the Tribune’s review of appellate rulings. The misconduct by prosecutors has included misstating the law or evidence, using inflammatory arguments that appeal to jurors’ prejudices, and even breaking a promise to a defendant not to seek the death penalty if he provided a written confession.
In securing a death sentence against Verneal Jimerson, another one of the Ford Heights Four who was exonerated by DNA evidence, prosecutors allowed their star witness to tell what they knew to be a lie, the Illinois Supreme Court ruled.
Jimerson, according to a previous Tribune investigation, is one of at least 381 defendants nationwide to have a homicide conviction thrown out because prosecutors concealed evidence suggesting innocence or knowingly used false evidence. That total underscores how questionable tactics marring Illinois death-penalty trials also course through other cases and states….
Another way that many prosecutors have bent or broken the rules in death-penalty cases has come at the trial’s outset–when picking the jury.
Juries are supposed to represent a cross-section of the community, because people of different backgrounds, races and genders often have experiences and perspectives that can benefit a jury’s deliberations. For example, an African-American from the Englewood neighborhood on Chicago’s South Side might be more skeptical of a police officer’s disputed testimony than a white resident of Schaumburg.
Having different races represented on juries would figure to be especially important in capital cases, where, in Illinois, nearly two-thirds of the defendants sentenced to death have been black or Hispanic….
At least 35 black defendants condemned to death in Illinois since 1977 were convicted or sentenced by an all-white jury, the Tribune found. That accounts for 22 percent of all blacks sentenced to death.
Of 65 death-penalty cases in Illinois with a black defendant and white victim, the jury was all white in 21 of them, or nearly a third….
Despite the long string of cases where prosecutors have removed an inordinate number of blacks from jury pools, only one conviction in an Illinois death-penalty case has been reversed because of a finding that prosecutors discriminated on the basis of race during jury selection….
In Illinois, errors by judges, ineptitude by defense attorneys and prosecutorial misconduct have been so widespread in death-penalty cases that a new trial or sentencing hearing has been ordered in 49 percent of them, the Tribune found.
That so many convictions and death sentences have been vacated shows that the Illinois Supreme Court, unlike the reviewing courts in some states, has not been a rubber stamp in capital cases. At the same time, the Illinois Supreme Court has upheld scores of death sentences while forgiving trial errors that benefited prosecutors, dismissing the errors as harmless.
In a chilling illustration of the death penalty’s frailties, the very courts that have granted a new trial or sentencing hearing to nearly half of Illinois’ Death Row population rejected the appeals of Anthony Porter, an innocent man who came within two days of execution.
Wrongly convicted in 1983 of shooting to death a couple as they sat in bleachers at a park on Chicago’s South Side, Porter was saved not by the justice system, but by journalism students. Working with a private investigator, they proved Porter’s innocence earlier this year by obtaining a videotaped confession from the real killer, who recently pleaded guilty….
Part 2: Inept defenses cloud verdict.
Unlike at least a dozen other states, Illinois dictates no minimum standards for attorneys who defend someone’s life.
Since Illinois reinstated capital punishment in 1977, 26 Death Row inmates…have received a new trial or sentencing because their attorneys’ incompetence rendered the verdict or sentence unfair, court records show.
And 33 defendants sentenced to death were represented at trial by an attorney who had been, or was later, disbarred or suspended–disciplinary sanctions reserved for conduct so incompetent, unethical or even criminal that the state believes an attorney’s license should be taken away….
For the adversarial system of justice to work, defense attorneys must vigorously test the prosecution’s evidence. But in capital trials so complicated and stressful they challenge even the best of lawyers, the courts themselves have compromised justice by often appointing ill-qualified attorneys to defend poor and uneducated defendants. Such defendants account for the overwhelming majority of Illinois’ Death Row population….
Legal experts say a capital trial’s defense should include, at a minimum, two experienced criminal defense attorneys, an investigator and a specialist at developing evidence for sentencing. The attorneys, experts say, should devote hundreds of hours to preparing and trying the case….
Part 3: The jailhouse informant.
Even prosecutors acknowledge that jailhouse informants are among the least reliable of witnesses. Yet in Illinois, at least 46 inmates have been sent to Death Row in cases where prosecutors used a jailhouse informant, according to a Tribune investigation that examined the 285 death-penalty cases since capital punishment was reinstated in 1977.
In about half of those 46 cases, the informant played a significant role in the conviction. Often, prosecutors put jailhouse informants on the witness stand in cases where the evidence of guilt was flimsy or during sentencing to demonize a defendant with inflammatory accounts of the crime.
Prosecutors tried to use jailhouse informants in numerous other cases as well, according to the Tribune’s investigation, but backed off after defense attorneys challenged their truthfulness and threatened to expose their backgrounds.
Snitch testimony helped convict or condemn 4 of the 12 Illinois Death Row inmates who were later exonerated. In two other cases, prosecutors had jailhouse informant testimony ready but did not use it….
Part 4: A tortured path to Death Row.
For police and prosecutors, few pieces of evidence close a case better than a confession. After all, juries place a remarkable degree of faith in confessions; few people can imagine suspects would admit guilt if they were innocent. But, in Illinois, confessions have proved faulty….
“It is now common knowledge,” U.S. District Judge Milton Shadur wrote in one Death Row inmate’s appeal in March, “that in the early- to mid-1980s, Chicago Police Cmdr. Jon Burge and many of the officers working under him regularly engaged in the physical abuse and torture of prisoners to extract confessions.”
Citing internal police accounts, lawsuits and appeals, Shadur said that torture occurred as an “established practice, not just on an isolated basis.”…
Because interrogations take place behind closed doors, defendants have a hard time proving police brutality. Rare is the abuse claim that results in a confession being thrown out–in any sort of case.
That is in large part because the courts have made proving abuse extremely difficult. The burden first is on defendants, who must show they were injured while in the custody of police. That can be difficult because suspects rarely have definitive evidence, such as medical reports from immediately before and after a police interrogation.
If defendants can overcome that obstacle, the burden then shifts to the prosecution. It must show that police did not inflict injuries intentionally in an effort to get a confession. The prosecution cannot simply deny the charges….
In response to the growing number of abuse allegations, OPS [Office of Professional Standards] investigator Michael Goldston sought to determine if there indeed was a pattern. In 1990, in a report that bears his name, he cataloged more than 50 instances of alleged mistreatment under Burge and concluded that torture was “methodical” and “systematic.”…
[T]he city [of Chicago] and police have never undertaken a full-scale investigation that would determine if Burge’s tactics led to wrongful convictions, even though several cases still are making their way through the courts….
Part 5: Convicted by a hair.
In Illinois, prosecutors relied on hair-comparison evidence in at least 20 cases where the defendant was sentenced to death, and it played a significant role in at least half of those cases, according to a Tribune investigation of all 285 death-penalty cases in Illinois since capital punishment was reinstated in 1977.
In some death-penalty cases, hair evidence has been especially crucial because the prosecution’s other evidence consisted of nothing more than a jailhouse informant or accomplice testimony, two types of evidence that often prove unreliable.
But over the last decade or so, hair-comparison evidence has been exposed as notoriously untrustworthy. Some courts outside Illinois have begun restricting or even forbidding its use, saying that visual hair comparisons are scientifically suspect and have little value as proof….
The use, and abuse, of hair analysis is one more way prosecutors have shored up weak cases in Illinois, diluting the credibility of the death-penalty system. The result can be wrongful convictions and costly court settlements paid to exonerated inmates.