DATE February 18, 2003 ACCOUNT NUMBER N/Aâ¨ TIME 12:00 Noon-1:00 PM AUDIENCE N/Aâ¨ NETWORK NPRâ¨ 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.