By Michael Miner

Angel of Death Row

Governor Ryan delivered a stem-winder a couple of weeks ago. Tribune columnist Eric Zorn, who thinks it was “extraordinarily powerful,” E-mailed Ryan’s prepared text to various Tribune editors with a note saying–as Zorn paraphrased himself later–“Look, isn’t this great! We’re making a difference. You should have been there.”

Zorn was one of a handful of off-duty Tribune reporters present for Ryan’s speech. Nevertheless, the Tribune didn’t cover it. Neither did any other Chicago paper. The speech’s drama came through in the prepared text. But its newsworthiness was something Ryan added as he spoke.

Ryan was addressing the awards dinner of Northwestern University’s Center on Wrongful Convictions, describing his personal road to Damascus, the epiphany that led him to declare a moratorium on the death penalty in Illinois. The moratorium of course had been big news.

Ryan was blunt and confessional. He faced a friendly audience, but one salted with skeptics who doubted his motives, who suspected the moratorium owed less to a genuine epiphany than to the governor’s need to counter the infamy of the state driver’s license facilities scandal.

But Ryan wowed the skeptics too. “I never imagined I would be here tonight,” he said. “Some of you, like former senator Dawn Clark Netsch, never would have imagined I would be here tonight. I’ve been in elective office for more than 30 years. During that time I was a member of the county board in Kankakee, a legislator and executive officeholder. I was a staunch death-penalty supporter.

“Like many other elected officials, I have believed there are crimes that are so bad that the death penalty is the only proper societal response for the criminals convicted of those crimes in a court of law. So I supported the death penalty. I spoke for it. I voted for it. I believed in it.

“I was part of that great body of Americans who saw a nation in the grip of rising crime rates, inner cities becoming armed camps, and ever-growing violence in our streets, our schools, and even our places of worship. Tough sentences, longer prison terms, more jail, and strict imposition of the death penalty–and those were the answers we saw. Catch them, convict them, lock them up, and throw away the key.

“As a member of the Illinois General Assembly, I vividly remember voting for the death penalty. And I can also remember the debate vividly on the death penalty. During the debate on the death penalty, those of us who supported the death penalty, we were asked by those who opposed it, who would be willing to throw the switch? Would you be willing to throw the switch? It was a sobering question, and I wish now that I could swallow the words of unqualified support for the death penalty that I offered.”

This was strong language, though from a reporter’s standpoint nothing to hang a story on. “Back in the fall of 1998,” Ryan went on, “when I was still campaigning for governor, Anthony Porter was scheduled to be executed on September 23 of that year. He had ordered his last meal and been fitted for his burial clothes. Mr. Porter had been convicted in the 1982 shooting death of a man and woman in a south-side Chicago park. Two days before he was to die, his lawyers won a last-minute, temporary reprieve based on his IQ.”

Given that opportunity, journalism professor David Protess, “a powerful champion for justice,” and some of his students investigated Porter’s case and exonerated him. The real killer, who’d been living in Milwaukee, eventually confessed.

“After spending 17 years on death row he was a freed man,” Ryan said. “By then, I had just been inaugurated as governor….And frankly, I was caught off guard. I didn’t know how bad our system really was. I couldn’t believe the system that I had believed in could come that close to executing an innocent man.”

Soon Ryan did throw the switch. Andrew Kokoraleis had been convicted of the rape, mutilation, and murder of a young woman and condemned to death. Ryan said, “I double-checked and then I triple checked. I wanted to be absolutely sure that this man was guilty.” Convinced of it, the governor allowed Kokoraleis to be executed in March of last year. “But I want to tell you,” Ryan said, “it was an emotional, exhausting experience. I wouldn’t wish that experience on anyone.”

Ryan didn’t object categorically to the death penalty itself–an omission noted and regretted by members of his audience. But long before making this speech he’d said and done more than enough for proponents of the death penalty to label him a tool of a cunning strategy to abolish it by making an end run around public opinion.

This perspective was concisely expressed last April in an American Spectator article that explained that a “new breed” of abolitionists was running “a brilliantly conceived campaign” to exploit the “debatable proposition” that the death penalty threatens the innocent. “Innocence,” wrote Byron York, “had the potential to succeed where racial, constitutional, and religious arguments had failed.”

To York, Anthony Porter was “a godsend for the anti-death penalty cause…someone who was actually innocent.” Kokoraleis was “nothing but bad PR for moratorium supporters,” someone to keep silent about until his execution was done with and forgotten.

There’s no better way to preen intellectually than as the one who sees through the “brilliantly conceived campaign” of the enemy. And there’s no slyer way to suggest a campaign’s ultimately spurious than by calling it “brilliantly conceived.” York noted that the Tribune has led the applause for the moratorium. But, he went on, “the editorial acclaim…left a few basic questions unanswered.” Principally, “Why is so much new attention being paid to the death penalty? Why is it happening now?”

It’s interesting to think of innocence as some sort of attention-getting gimmick. But unlike York, the governor didn’t read last year’s Tribune series on the death penalty in Illinois as an ideological fashion statement. “We all know how startling that was,” Ryan said. “Half of the nearly 300 capital cases in Illinois had been reversed for a new trial or sentencing hearing. Thirty-three of the death-row inmates were represented at trial by an attorney who had later been disbarred or at some point suspended from the practice of law.

“I’m a pharmacist from Kankakee. I gotta tell you, I don’t know how that happens. I don’t know how you can put a person up to die, charge them with a crime that can take their life, and be represented by an unqualified attorney. I don’t understand that at all.”

The Tribune has flayed Ryan alive over the license facilities scandal. But four Tribune reporters were present to be honored by the Center on Wrongful Convictions for their investigative writing on the death penalty–Zorn, Maurice Possley, Ken Armstrong, and Steve Mills–and the governor applauded them. “Your reporting and columns crystalized my thinking,” he said. “One of the highest callings in journalism is to save the life of an innocent person on death row. You have achieved that, and you are to be commended.”

Last January, the 13th death-row inmate was exonerated in Illinois; as many inmates had been exonerated as executed since the death penalty was reinstated in 1977. It was a “shameful scoreboard,” said Ryan in his speech. “I couldn’t live with myself knowing I might put an innocent person to death.”

So on January 31 he declared a moratorium and in March impaneled a commission with what he said was this instruction: “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 person is facing a lethal injection, nobody will face that fate on my watch.”

Up to this point Ryan’s speech had been rousing but not groundbreaking. But here he departed from his prepared text. “I want to tell you,” he said. “I’m not only concerned about the death penalty, but I’m concerned about the whole criminal code we have in Illinois. There is without question a lot of people sitting in prisons today that didn’t commit the crimes they are there for. They may not be facing the death penalty, but we’ve shortened their lives by putting them in prison for a crime they didn’t commit.”

Afterward, reporter Doug Dobmeyer went up to Ryan and asked, “How widespread do you think the problem of mistakes are in the criminal justice system?”

“Frankly,” said Ryan, “I think it’s pretty bad.”

Dobmeyer spotted John Schmidt in the crowd. Schmidt was a Democratic candidate for governor in 1998, and he intends to try again in 2002. “You’ve been on record as being in favor of the death penalty,” Dobmeyer said to him. “Why are you here tonight?”

“I’m rethinking that position,” Schmidt replied.

Dobmeyer, the former head of the Public Welfare Coalition, now publishes the E-letter Poverty Issues…Dateline Illinois, which every couple of weeks since 1996 he’s been sending out to some 650 clients and media people around the country. Dobmeyer’s focus is news that falls through the cracks of the big media. “Covering poverty is a job without rewards,” he says, “because poor people are seen as losers and out of the mainstream of society.” Dobmeyer taped and E-mailed his subscribers Ryan’s speech, along with the text of the brief interviews he’d conducted at the dinner.

Who used it? On-line editor Rich Miller posted the speech on his Springfield-based Web site, capitolfax. com, along with an introduction by Dobmeyer focusing on Ryan’s criticism of the entire criminal justice system. PURE-News, a Springfield-based monthly newspaper for blacks, told Dobmeyer it intended to pick up the speech. Bernard Schoenburg, political writer for the State Journal-Register in Springfield, used it as the basis for a piece last Sunday that began: “Gov. George Ryan has an odd sense of humor and can come off as cavalier, but he apparently is sincerely shaken by what he views as injustices in Illinois’ death penalty system.”

Like his colleagues, Zorn attended the dinner to be feted, not to take notes. He missed Ryan’s interpolated comment on the Illinois criminal code, but he read the prepared text carefully. “Although it reads like an abolition speech, it stops just one percent short of being an abolition speech,” Zorn told me. “He holds out some sliver of hope that [the system] can be fixed and you can kill people like Kokoraleis and spare people like Anthony Porter. My feeling is that any system that will kill a Kokoraleis will catch a few Anthony Porters along the way.”

Zorn agrees with Byron York that abolitionists have lost the argument that capitol punishment is morally wrong. But that argument was never his own, so its defeat leaves him dry-eyed. “There are people who do not deserve to live,” he says. “But does the state deserve to have the power to kill them? And can the state be relied on to exercise that power responsibly and perfectly?”

Like Ryan–but unlike, it would seem, a Byron York–Zorn is unwilling to live with imperfection. There’s no reason to, he argues, because capital punishment accomplishes nothing to justify its occasional mistakes. “Just like the moral argument has been abandoned by most people against the death penalty,” he told me, “so has the deterrence argument been abandoned by most people for the death penalty.”

There are probably a lot of crimes that capital punishment would deter, Zorn said, such as shoplifting, but murder doesn’t happen to be one of them. He recognizes there’s a case to be made that the only thing wrong with the death penalty is that it punishes the wrong crimes.

Guilty Until Chosen President

A Hot Type exchange with Bruce Dold, editor of the Tribune editorial page:

Me: I’m both troubled and enamored by the comparison I’m unable to resist making between Florida and death row. To me, Al Gore resembles a prisoner who received a fair trial and was found guilty of a murder he nevertheless didn’t commit, and now finds the appellate courts unwilling to consider new evidence of his innocence. To his pleas the courts respond that he was properly tried and convicted and he has exhausted his appeals. Furthermore, retrials are flawed on principle: because memories fade and witnesses recant, the original trial–whatever its imperfections–is the fairest. And now the dignity of the law requires no further temporizing on the execution.

There is no David Protess and student corps to root out the facts in Florida and shame the powers that be into changing their minds; there is, however, going to be a private counting of the contested ballots by the media–who I imagine will see to it that some impartial countinghouse does the grunt work, perhaps in some sort of blind fashion in which the counters do not know which hole belongs to which candidate. This counting will resemble a DNA test that comes too late to have any legal impact.

Dold replies: I think it’s an interesting analogy, but Bush would face a similar situation if the Florida Supreme Court prevailed. He has been tried and found innocent, but the Florida Supreme Court seeks to subject him to double jeopardy. The court wants to retry him even though the evidence against him is in dispute and no one has established the proper burden of proof. Dozens of juries would be deciding their own burden of proof.

That is, there are still disputes over what kind of ballot punch–dimpled, one-corner, two-corners, three-corners–indicates a clear intention of the voter. And no one has established a uniform statewide standard for judging that. But we’ll have the trial anyway.

I’m sure someone will examine and tote up the disputed ballots after all this is over. It would be interesting to know what is on those ballots. But whoever does it will have to make an independent judgment as to what constitutes the clear intention of the voter. So a news media count of the votes will still be open to the same disputes we’ve been having for weeks.

You Can’t Judge a Judge by His Coverage

Though the Florida recount battle was unique in American history, the press seized what opportunities there were to assert hallowed cliches. One that’s dusted off whenever momentous litigation visits us is the thumbnail profile of the presiding judge. Such a profile resembles the glimpse the dailies give us of an incoming archbishop: the goal is to humanize the majesterial, while the pertinent subject of professional competence remains off-limits. (Remember how solid Lance Ito sounded at first?)

The New York Times, introducing the hitherto unknown circuit judge N. Sanders Sauls on November 29, called him “by all accounts, one of the keener intellects on the state bench, yet unassuming.” Sauls, who would preside over the south Florida undercount hearing, was introduced as a “former small-town boy” who “brings a folksy manner to his work” and “maintains a reserve” though he’s “gregarious outside the courtroom.” And if “he uses needling humor to ride herd on lawyers,” nevertheless he’s “unfailingly calm and courteous.”

On December 8 the Times introduced us to circuit judge Nikki Ann Clark, who would hear the absentee-ballot case in Seminole County. The Times told us the “soft spoken” judge “is regarded as possessing a toughness larger than her stature,” having grown up in a part of Detroit “she once likened to a war zone.” The judge, “known for her even-tempered, businesslike manner” as well as for “a sharp command of the law and of her courtroom,” was either “a too-liberal political appointee or an independent-thinking stickler for legal precedent,” depending on whom you asked.

A day later, the Tribune profiled circuit judge Terry Lewis, who was taking over the undercount case from Judge Sauls. It seemed Lewis is “known for his easy and informal style….He likes to play basketball and wrote a novel.”

Lewis inherited the undercount case after the state supreme court overruled Sauls. By now the Times had told us a little more about Judge Sauls, though nothing that couldn’t have gone in the first story. It seemed the judge had been “hauled to the woodshed” by the state supreme court two years before and chastised as “arbitrary and unfair.” And he’d been stripped of his title of chief judge of the Leon County Circuit.

Art accompanying story in printed newspaper (not available in this archive): illustration/Russ Ando.