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, 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.
Williams and three other men–referred to as the Ford Heights Four–were wrongly convicted of the 1978 murders of a south suburban couple. Williams served 18 years, almost all on Death Row, before he was cleared by DNA evidence in 1996. He then filed a lawsuit accusing sheriff’s officers of framing him.
“The feeling is emotionally choking,” Williams said of being sentenced to die for a crime he did not commit. “It’s inhuman. It’s something that shouldn’t be imaginable. Here are people who are supposed to uphold the law who are breaking it.”
Illinois houses its condemned inmates at the Menard and Pontiac correctional centers and at the new prison in Downstate Tamms. They spend 23 hours a day in cells so narrow they can touch opposite walls at the same time.
To be sure, many of Illinois’ Death Row inmates are guilty of horrendous crimes. But while lawfully condemning the guilty, the state’s system of capital punishment has proved so vulnerable to mistakes that it threatens to execute the innocent as well.
The problems afflicting death-penalty trials in Illinois have generated great concern, even among some supporters of capital punishment, and have prompted the Illinois Supreme Court and the state’s legislature to examine possible reforms.
While it is impossible to calculate the exact financial costs imposed by the system’s flaws, without question they are staggering. Taxpayers have not only had to finance multimillion-dollar settlements to wrongly convicted Death Row inmates–Williams alone received nearly $13 million from Cook County–but also have had to pay for new trials, sentencing hearings and appeals in more than 100 cases where a condemned inmate’s original trial was undermined by some fundamental error.
Illinois Supreme Court Justice Moses Harrison II wrote last year in one Death Row inmate’s appeal that he will no longer vote to uphold the death penalty, saying “so many mistakes” have been made in Illinois.
“The system is not working,” Harrison wrote. “Innocent people are being sentenced to death. If these men dodged the executioner, it was only because of luck and the dedication of the attorneys, reporters, family members and volunteers who labored to win their release. They survived despite the criminal justice system, not because of it. . . . One must wonder how many others have not been so fortunate.”
Flawed trial, flawed evidence
The case of Madison Hobley exemplifies how a man can be condemned to die in a flawed trial with questionable evidence of guilt.
In the predawn hours of Jan. 6, 1987, an arsonist’s fire burned through a three-story apartment building on Chicago’s South Side, forcing people to jump from windows and throw children to waiting arms below. Seven people died, including Hobley’s wife and baby boy.
The crime was a so-called heater case, one that newspapers and television stations prominently recounted.
Police arrested the 26-year-old Hobley within 24 hours. Three years later, a Cook County jury convicted Hobley and sentenced him to death.
Prosecutors claimed Hobley was having an affair and set the fire to kill his family. Hobley admits the affair. He denies setting the fire.
His appeal alleges that prosecutors suppressed a report saying Hobley’s fingerprints weren’t found on the gas can he allegedly used, and that after Hobley’s appellate lawyers learned of a second gas can possibly related to the investigation, police destroyed it. Last year, the Illinois Supreme Court found sufficient merit to those allegations to order a hearing on them. The court said it was “deeply troubled.”
At trial, the lead prosecutor insisted there was no fingerprint report. Now, the state’s attorney’s office says there was a report and believes the defense was notified of that before the trial.
But the questions surrounding Hobley’s conviction go further.
In a befuddling move, Hobley’s trial attorneys allowed a suburban police officer to get on the jury. Most lawyers consider police officers the worst jurors imaginable for defendants because of their potential biases in favor of law enforcement. The officer became jury foreman. In an affidavit, another juror said the officer revealed his gun in the jury room and, citing his own experience, vouched for the police’s work in Hobley’s case.
Hobley was interrogated by police officers under then-Cmdr. Jon Burge, whose name would become attached to one of the worst scandals in the modern history of the Chicago Police Department. At the center of the scandal were allegations that in the 1970s and 1980s, police tortured suspects to obtain confessions, using such means as electroshock and Russian roulette.
Fourteen men sentenced to death in Illinois were convicted with what they claimed to be false confessions obtained through torture by Burge’s officers. Ten, including Hobley, remain on Death Row as their claims of abuse by a discredited police unit move through the appeals process.
Hobley, who worked for a medical-supplies company and had no prior criminal record, claimed officers wrapped a plastic bag over his head, struck his chest, kicked his shins and pushed their thumbs against his throat. The officers denied it.
Hobley’s complaint went nowhere in an internal police investigation. But because so many suspects made similar claims, the department’s Office of Professional Standards later conducted a far-reaching review of abuse allegations and, in 1990, found that Burge’s officers engaged in systematic torture. Burge eventually was fired.
The police officers working for Burge said Hobley confessed; Hobley denies he did. Detective Robert Dwyer said he wrote down the confession, but testified that his notes got wet and torn, so he threw them away.
An arson detective’s initial report indicated the fire started on the ground level. But Hobley allegedly confessed to starting the fire outside his third-floor apartment. At trial, the detective modified his analysis to say the fire could have started anywhere.
Other than the disputed confession, the prosecution’s case hinged on a witness who said he saw Hobley filling a gas can shortly before the fire. But certain elements of that witness’ testimony contradicted other evidence, and Hobley’s attorneys have alleged the witness received special consideration in a pending criminal case in exchange for his cooperation.
Prosecutors put into evidence a gas can found under a 2nd-floor apartment’s kitchen sink. They claimed Hobley used it to set the fire. But that can differed in size from the one Hobley reportedly had been seen filling, and Hobley allegedly confessed to throwing the can down a hallway, not into an apartment. In a deposition this year, one of the prosecutors said he doesn’t believe Hobley used that can. Three months later, he wrote a letter taking that back and blaming a memory lapse.
Currently an inmate at Menard, Hobley has been on Death Row for nine years.
“I respected the law. I worked,” he recently told the Tribune. “The only thing I did wrong was I was unfaithful.”
Prosecutor misconduct
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.
Death-penalty cases in Illinois have included some of the most sympathetic victims, helping flare emotions at trial. Of the 285 cases since capital punishment’s reinstatement, there were multiple murder victims in 104. In 44 cases, at least one victim was 12 years old or younger. In 15 cases, the victim was a police officer.
When the drive to avenge such crimes reaches the courtroom, a prosecutor’s worst tendencies can come to a boil and spill over.
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.
Although the great majority of misconduct by prosecutors occurs at trial, some prosecutors have run afoul while defending death sentences on appeal.
When Cornelius Lewis was convicted in 1979 of murdering a Decatur bank guard, the Macon County state’s attorney obtained the death penalty by portraying Lewis as a career criminal with four felony convictions. On appeal, however, Assistant State’s Atty. Jeff Justice and Assistant Illinois Atty. Gen. Neal Goodfriend discovered that was only half-true: One felony charge had been dismissed and another reduced to a misdemeanor.
But neither prosecutor notified Lewis’ attorney or the courts that false evidence had been used to help secure Lewis’ death sentence, according to court records. That information surfaced only because Lewis’ attorney discovered it on his own. In 1987, a federal appeals court vacated Lewis’ death sentence and called Goodfriend’s and Justice’s withholding of vital information “shocking” and “reprehensible.” The court referred both to the state’s lawyer disciplinary agency, but neither was sanctioned. At a new hearing, Lewis was sentenced to life.
“These prosecutors just sat on the information. They made a conscious decision not to tell me,” said J. Steven Beckett, who represented Lewis on appeal. “What were those prosecutors thinking? That’s advocacy taken to an extreme.”
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.
Although the Constitution bars racial discrimination during jury selection, prosecutors often have flouted that prohibition. And reviewing courts, with rare exceptions, have let them, even after a 1986 U.S. Supreme Court ruling that was meant to crack down on the practice.
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.
In the Death Row cases where blacks were convicted by an all-white jury, prosecutors frequently used their discretionary strikes to remove African-Americans from the jury pool. Such strikes allow attorneys on both sides to excuse an allotted number of jury pool members, usually without giving a reason.
In the 1983 trial of Andrew Wilson, who was convicted of murdering two Chicago police officers, Cook County prosecutors removed 20 African-Americans from the jury pool. In the 1979 trial of Farris Walker, who was convicted of the murder and attempted robbery of a retired lawyer, prosecutors struck 16 African-Americans. In the 1979 trial of Hernando Williams, who was convicted of kidnapping and murdering a natural-childbirth instructor, prosecutors struck 11 blacks.
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.
Questions brushed aside
In addition to tolerating such widespread practices as racial discrimination during jury selection, reviewing courts have, at times, shown a willingness to uphold individual death sentences despite a host of troubling questions about a trial’s integrity.
William Bracy was convicted and sentenced to death in Cook County in 1981 for the murders of three drug dealers in Chicago. The prosecution’s chief witness was a man who had admitted taking part in the crimes and who, in exchange for his testimony, received a lenient sentence.
Presiding at Bracy’s trial was Thomas Maloney, who would become the only Illinois judge ever convicted of fixing murder cases. He was sentenced in 1994 to nearly 16 years in prison for fixing three murder cases in the 1980s.
To represent Bracy, Maloney appointed Robert McDonnell, a convicted felon who became the only Illinois lawyer ever disbarred twice. McDonnell was then between disbarments, reinstated despite concerns about his emotional stability and drinking, lawyer disciplinary records show. The prosecutors were Michael Goggin and Gregg Owen, a team that repeatedly committed misconduct during trials, racking up 35 instances of wrongdoing in one case alone, court records show.
The jury included the wife of a judge who had sentenced Bracy to prison in an unrelated case. In addition, the jury was all white, according to an affidavit filed by one of the trial’s lawyers.
Several aspects of Bracy’s case gave reviewing courts pause, but none reversed. Misconduct by the prosecutors was deemed harmless. Issues concerning the jury’s makeup and McDonnell’s competence were raised and rejected. So was an argument that Maloney was motivated to make pro-prosecution rulings in order to protect his law-and-order reputation and to deflect suspicion that he was on the take in other cases.
When a federal appeals court denied Bracy’s appeal in a 2-1 decision in 1996, dissenting Judge Ilana Diamond Rovner wrote: “I do not know which I find more shocking: the base quality of justice that Bracy and (co-defendant Roger) Collins received in the Illinois courts, or our holding today that the Constitution requires no more.”
A fair trial requires an impartial judge, but “the State of Illinois placed the fate of William Bracy and Roger Collins in the hands of a racketeer,” Rovner wrote.
The U.S. Supreme Court has since granted Bracy’s attorneys the opportunity to find evidence showing Maloney penalized defendants who didn’t bribe him. Maloney presided over nine cases in all in which a defendant received the death penalty, the second most of any Illinois judge.
Six of those defendants have received new trials on appeal: Two were acquitted, two were convicted again but sentenced to life and two await retrial, although prosecutors have told the Illinois Supreme Court that convicting them again will be difficult.
The other three defendants remain on Death Row.
String of errors, reversals
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.
Porter’s appeals were denied even though his trial was seriously compromised. A juror was acquainted with one victim’s mother and had even attended the victim’s funeral, but she didn’t disclose her potential bias during jury selection. In addition, Porter’s attorneys tried the case on the cheap, failing to capitalize on available evidence that could have punched holes in the prosecution’s case. They conducted a limited investigation, and in a sworn affidavit, one attorney even accused the other of having a judge sentence Porter instead of a jury to save time and money.
In words that now ring hollow, reviewing courts chose to excuse the shortcomings in Porter’s trial, deeming such errors harmless because the evidence against Porter was so strong. “Overwhelming,” the Illinois Supreme Court once called the evidence of Porter’s guilt.
In Illinois, the majority of death-penalty cases reversed for a new trial or sentencing hearing have been attributable to errors by trial judges, such as inadequately screening jurors for bias or allowing prosecutors to present such dubious evidence as what a defendant supposedly muttered while sleeping, according to the Tribune’s review of appellate records.
Judges have sweeping responsibilities. They are gatekeepers of trial evidence and instruct jurors on the law. At trial, there are numerous junctures where judges can commit errors affecting the outcome or leading to reversal.
Some judges have misstated the law to jurors, while others have demonstrated a profound ignorance of how capital trials are structured, sometimes depriving defendants of the right to have a jury impose the sentence instead of the judge.
Although many rules of death-penalty trials are unique, no specialized training is mandated in Illinois for the judges who preside over them.
Some of the most puzzling work by judges has been performed during Death Row appeals when cases have been returned to the circuit court for hearings on new evidence or various legal issues.
In Cook County, Judge John Morrissey mocked efforts by lawyers for Death Row inmate Ronald Jones to have DNA testing performed. “What issue could possibly be resolved by DNA testing?” Morrissey asked.
Over the objection of Cook County prosecutors, the Illinois Supreme Court later allowed the tests, which exonerated Jones for the 1985 murder and sexual assault of a South Side woman and led to his being released from Death Row earlier this year.
The pervasiveness of reversible errors in Illinois capital cases has imposed substantial costs in court time and taxpayer money.
In Cook County, Dennis Emerson has been sentenced to die no fewer than three times for the 1979 murder of a woman during a tavern robbery on Chicago’s South Side. A blend of errors by the trial judge, prosecutors and one of Emerson’s attorneys has twice caused appeals courts to order a new trial or sentencing hearing. Now, 20 years after the murder, the appeals process for Emerson’s third death sentence is just beginning.
And in a twist that adds police error to the mix, new evidence suggests Emerson may have committed a different murder that Chicago police pinned on an innocent man. James Newsome served 15 years of a life sentence for a South Side grocer’s murder before being exonerated in 1995 by new technology that showed his fingerprints didn’t match the gunman’s. Instead, those prints belonged to Emerson, according to police.
Prosecutors had sought the death penalty against Newsome. Had they succeeded, Newsome would have pushed the state’s number of exonerated Death Row inmates to 13–assuming he hadn’t been executed first.
Calls for reform
The growing list of innocent men who have been sentenced to die in Illinois has attracted attention worldwide and become a rallying cry for opponents of capital punishment.
The Illinois Supreme Court and Illinois General Assembly have created committees to study the death penalty, and the reforms being considered include the dramatic step of creating minimum standards for prosecutors as well as defense attorneys in capital cases. But so far, the state’s judicial and legislative officials have passed few rules or laws to shore up the capital-punishment system.
And in Cook County, where seven of the state’s 12 exonerated Death Row inmates were convicted, the string of wrongful convictions has barely stirred officials.
Compare the fallout from the cases of Dennis Williams and Guy Paul Morin.
Both were convicted of murder with jailhouse-informant testimony and hair-comparison evidence. And both were exonerated by DNA evidence–Morin in 1995, Williams in 1996. But while the crime pinned on Williams took place in Cook County, the one blamed on Morin occurred in the Canadian province of Ontario. Morin, convicted of murdering a 9-year-old girl, had received the country’s maximum penalty: a life sentence.
Following Morin’s release, top province officials appointed a special commission to investigate the case and recommend ways to prevent future miscarriages of justice. The inquiry lasted nearly two years. The commission called 120 witnesses, including criminal justice experts from around the world.
After reviewing thousands of documents, the commission issued a 1,200-page report, calling Morin’s conviction a tragedy. “The system failed him–a system for which we, the community, must bear responsibility,” the report said. The commission urged significant restrictions on hair and jailhouse-informant evidence, calling them generally useless or inherently unreliable. Ontario’s government then turned the recommendations into policy.
Cook County, meanwhile, settled Williams’ wrongful-arrest lawsuit for $12.8 million, thereby avoiding a trial and a public airing of the alleged misconduct by law-enforcement officers.
County officials have extended Williams an apology, but so far no reforms to go with it.
