Scott Turow

DATE February 18, 2003 ACCOUNT NUMBER N/A
 TIME 12:00 Noon-1:00 PM AUDIENCE N/A
 NETWORK NPR
 PROGRAM Fresh Air

Interview: Scott Turow discusses the death penalty
TERRY GROSS, host:

This is FRESH AIR. I'm Terry Gross.

The death penalty remains a controversial and divisive issue. Last month,
just before leaving office, Illinois Governor George Ryan took a stand by
pardoning four condemned men and commuting the sentences of the remaining 167
prisoners on Illinois' death row. Two years earlier, the governor imposed a
moratorium on executions and appointed a commission to examine the fairness of
the death penalty. The commission released its findings last April and
recommended 80 changes in the way the death penalty is administered. Later
we'll hear from a state's attorney who served on the commission and continues
to support the death penalty.

First we'll talk about serving on the commission with Scott Turow. Turow is a
lawyer and the author of several best-selling legal thrillers including
"Presumed Innocent." His latest novel, "Reversible Errors," is about a lawyer
trying to exonerate a man facing imminent execution.

Hi, we're just having technical problems with our interview, so we'll have
that for you in just a few seconds. I spoke to Scott Turow a few days ago,
and we'll have that for you momentarily. In the meantime, we're all happy to
be here at our studios in Philadelphia, where we're still digging out of the
blizzard.

Well, as we're waiting for the tape, I should mention that looking through the
window in Philadelphia, I see piles of snow, and it's just one of those things
in live radio, you know, that occasionally something goes wrong, as it is
going wrong right now, but we'll have that for you momentarily.

And here is our interview with Scott Turow on the death penalty.

Mr. SCOTT TUROW (Author, "Reversible Errors"): I know that when I was asked
to protest the execution of John Wayne Gacy, who had killed 33 young men in
the most horrible means imaginable, and then buried their tortured bodies
under his house, that I refused to join in the protest. I couldn't call
executing Gacy an injustice. So I was never settled in my own mind, though,
whether capital punishment, while just in terms of my own moral lexicon,
whether it was wise as a matter of legal procedure and a way to run a society.

GROSS: Now when you were prosecuting cases, there was no federal death
penalty at the time, and you were a federal...

Mr. TUROW: Correct.

GROSS: Assistant US attorney.

Mr. TUROW: Correct.

GROSS: But then you became a defense attorney...

Mr. TUROW: Right.

GROSS: ...with a private practice.

Mr. TUROW: Right.

GROSS: And by this time there was a death penalty. Did you have cases which
were capital cases in which you were defending the person?

Mr. TUROW: Well, my exposure to capital punishment really came in a couple of
doses. For many years I represented a man named Alex Hernandez who, along
with his more celebrated co-defendant, Rolando Cruz, had been tried, convicted
and sentenced to death once. Their case was reversed and Cruz was retried,
sentenced to death again, Hernandez to 80 years. And I came in at the point
that Hernandez had been sentenced to 80 years, so I was handling the appeal
from a capital prosecution, but my client was not death sentenced; his
co-defendant was. The great controversy came after both Hernandez and Cruz
had been convicted and sentenced to death when another man, Brian Dugan,
confessed that he, in fact, had committed the crime for which these two men
were then on death row, a claim in Dugan's case that was obviously buttressed
by the fact that he had committed other murders, one of which nearly identical
to the crime involved for Cruz and Hernandez.

And the response of the prosecutors to this new information about Dugan was
certainly disappointing to me as a defense lawyer. They resisted Dugan's
confession for a decade, attempting to debunk it, calling him a liar. When
they couldn't prevail any longer on the idea that he was uninvolved because of
DNA tests, then they started to suggest that Cruz and Hernandez must have
committed the crime with him. And as I say, it was a classic example of
watching prosecutors get dug into a theory and then basically losing, in my
opinion, any sense of boundary in trying to vindicate that original judgment.

GROSS: So what was the final outcome in this case?

Mr. TUROW: Well, the final outcome is complicated, but the short answer is
that Cruz and Hernandez are free. Seven individuals, four police officers and
three prosecutors were indicted for conspiring to obstruct justice in the Cruz
case. They were tried and they were acquitted, but the county reached a
multimillion-dollar civil settlement with Hernandez, Cruz and their one-time
co-defendant, a man named Stephen Buckley, who had been indicted with them
originally.

GROSS: So was this case a turning point for you in terms of your opinions
about the death penalty?

Mr. TUROW: The case was a turning point for me in my opinions about the
justice system. Like most people who have been prosecutors, I always assumed
that I had certainly never taken anybody to trial whom I thought was innocent,
and I really believed that the justice system operated, perhaps not perfectly,
but I thought it was extremely unlikely that you could convict an innocent
person let alone once, but the idea that it could be done twice seemed
completely ridiculous and inconceivable to me. And I think there's, you know,
something in the nature of the kinds of cases that end up as capital cases,
cases in which the death penalty is sought, that makes them more prone to
convict innocent people.

GROSS: What is that?

Mr. TUROW: It's sort of a paradox that troubles the capital system. The
cases in which capital punishment is supposed to be sought are, you know, to
borrow an often-used phrase most recently employed by the Virginia prosecutor
who's trying the Beltway sniper case, it's supposed to be the worst of the
worst. These are the most offensive, most repellant crimes whose facts are
often deeply upsetting. In the case of Hernandez and Cruz, a 10-year-old girl
had been abducted from her home in broad daylight, sexually abused and then
beaten to death. And the problem is that these cases stir up deep anxieties
and enormous anger, and that combination of anxiety and anger puts pressure on
police and prosecutors to come up with a suspect, and also makes it hard for
judges and juries to make dispassionate decisions in these cases. And the
irony is that the worse the case the more likely you are--the way our system
operates--to convict innocent people.

GROSS: What are some of the things that you saw when you served on the
governor's commission investigating the death penalty that affected your point
of view about the death penalty?

Mr. TUROW: Well, you know, in this state we've now had 17 people who have
been sentenced to death and later legally absolved, in most cases with
convincing proof of innocence. And you really sit back and you go, `How could
this happen and how could it happen so often?' And certainly the largest
problem is the one that I just identified, at least in my opinion, which is
that, you know, the cases themselves are basically a trap for the innocent
because they're so emotional.

But beyond that, in these 17 cases in Illinois, the certainly most prevalent
problem was what you'd have to call false confessions. You know, as a
prosecutor, you sort of subscribe to the belief that nobody would ever confess
to a crime they didn't commit. And it turns out that there are various
circumstances where that does happen.

GROSS: You mean because it's beaten out of them?

Mr. TUROW: Well, you know, beating is one thing. You know, Gary Gauger,
though, who's one of the 13, or one of the now 17--excuse me--but Gary Gauger,
whose case is dramatized in the play "The Exonerated." Gauger found the
bodies of his parents and was immediately taken by the police as a suspect.
He was then interrogated for 12 hours, and in that state of mind began
speculating about how the crime might have occurred and the police treated
that as a confession. So you're really looking at interrogation techniques
there that risked false statement. That happened more than once.

That was certainly something that was true in Hernandez's case as well. You
know, he made constant wild statements. Alex's IQ was debated, but nobody
thought it was much above 80, and he was constantly put in circumstances where
he was trying to help the police in saying absolutely goofy things, but the
police ultimately picked and chose among those statements and said, `Well,
this proves that he's guilty.'

GROSS: You pointed out that some people support the death penalty because it
suits their sense of moral proportion, that a serious and heinous, repulsive
crime, a monstrous offense, should also have the most severe penalty,
execution.

Mr. TUROW: Right.

GROSS: But after research and after serving on this commission, I think you'd
no longer think that that sense of moral proportion really holds up.

Mr. TUROW: The problem with it is that you can't carry it out in practice.
It puts an enormous burden of precision on the justice system. If you
sentence to death people who are not guilty or whose crimes are less grave
than other people who get life sentences, for example, then you have not
reinforced any kind of proportionate morality; you've undermined it. And in
point of fact, that's exactly what we do. Certainly we did commission
research in Illinois that showed differential treatment, for example, not just
based on race, which is a complicated subject, but geography, gender. All of
these things change the rates at which people get sentenced to death, and
certainly race is another factor, although it doesn't operate so much on the
skin color of the defendant so much as on the skin color of the victim. But
again, if you kill a white person in this society, or at least in the state of
Illinois, historically you're three and a half more times likely to get a
death sentence than if you kill somebody black.

GROSS: And if you kill them in a rural area, you're more likely to get the
death penalty than in the city.

Mr. TUROW: Five times more likely in a rural area. I think it's two and a
half times more likely if you kill a woman, half as likely if you are a woman.
All of these factors play in, and you think that it's ultimate punishment for
ultimate evil, but it ends up being far more capricious than that.

GROSS: My guest is lawyer and best-selling novelist Scott Turow. We'll talk
more after a break. This is FRESH AIR.

(Soundbite of music)

GROSS: My guest is Scott Turow. He's a lawyer and the author of several
best-selling legal thrillers. We're talking about his experiences serving on
an Illinois state commission to reform the death penalty.

Well, one of the problems with the system is that people who have been
convicted turned out to not have done the murder, and one of the reasons why
we know that is that after the fact, DNA has been used in the reinvestigation
of certain cases and...

Mr. TUROW: Right.

GROSS: ...it's shown that the person who was found guilty didn't do the
crime. So in the short term, DNA evidence is an argument against the death
penalty, because we're proving that people were unjustly convicted. You could
argue that in the long term, DNA evidence will help support the death penalty
because now we'll be more certain that the people convicted of a crime
actually did the crime. Do you think that your point of view about the death
penalty will change as DNA becomes more widely used?

Mr. TUROW: Well, I think that the argument you just made is, unfortunately,
specious. DNA has sort of exposed the tip of the iceberg. It has shown us
that in many, many cases of violent crimes, these kind of cases that excite
the emotions, we've convicted the wrong people. The Central Park jogger case
is, you know, an example from outside of Illinois. But laypeople tend to make
the assumption that, `Well, you have DNA in every case.' In point of fact,
you do not have DNA in every case. Generally speaking, there's not always
genetic evidence left behind. You know, it's got to be blood, saliva, semen,
something like that.

So while DNA has exposed in a really troubling way the fallacies of the system,
it is not the case that we're going to be able to tell innocent from guilty
simply because of that scientific innovation or any other. To a great extent
the system still depends upon the testimony of eyewitnesses, of accomplices.
You know, those are the means we've got, and I'm not proposing that we shut
down the criminal justice system, but we have to be aware of its vagaries.

GROSS: Do you think that the death penalty has looked different to you from
the point of view of prosecutor than it's looked from the point of view of
defense attorney?

Mr. TUROW: Sure. I mean...

GROSS: What are some of the differences?

Mr. TUROW: Well, bear in mind--and I try to remind myself of this all the
time--we talk appropriately about the propensity of the innocent to be
convicted in capital cases, but the reality, of course, is that most
defendants who are convicted in the United States are still guilty, and when
you are a prosecutor, your day-to-day experience is not of struggling to
convict the innocent, but, of course, struggling against all of the barriers
that the system imposes, to convict the guilty. But when you get on the other
side, and you're suddenly charged with dealing with an individual case, of
course it can look much different.

And one of the real problems we've got in this country is that we're
basically, especially in our big cities, engaged in a system of wholesale
justice.

GROSS: What do you mean by wholesale justice?

Mr. TUROW: The demands on the system are huge. You go into, for example, a
courtroom in the state courts in Chicago, every judge has got a hundred active
criminal cases on his docket; at least a hundred, many of them involving lots
of serious violence. You can't take all those cases to trial. You have to
get guilty pleas. There's a tremendous impetus to sort of push those cases
through the system. By the same token, we can sit and talk about DNA and
scientific evidence, but if you're a police officer who's dealing with crime
by volume, the easiest way to clear a case is to get a confession, not to go
out and take DNA specimens and wait six weeks for the results to come back.
And, you know, in that context, if there's a premium, for example, on
confessions, and there is, that's an obvious temptation to employ
overaggressive means in getting those confessions.

GROSS: The commission to reform the death penalty that you served on at the
request of Governor Ryan of Illinois issued a bunch of recommendations.
Select what you consider to be the most important ones.

Mr. TUROW: Well, there were several. The big-ticket items in my mind,
though, are videotaping of interrogations. That means that as soon as
somebody is a suspect in a murder that everything the police do with that
person in the station house is videotaped so that eliminates both the coercion
and the claims of coercion. We recommended greatly reducing the eligibility
factors in Illinois. When the death penalty was passed here in 1977, there
were seven factual circumstances under which capital punishment could be
sought; there are now 20, and one of them, felony murder, has gone from nine
felonies that made you eligible to 16. We recommended dramatically reducing
that number and getting rid of felony murder.

We recommended a statewide commission review the election of any of the 102
state's attorneys in Illinois who have the power now to seek the death
penalty. We did that to make sure that there was better uniformity in the way
that laws are applied so you don't get the death penalty being sought five
times more often in rural areas. We recommended changing the way eyewitness
identifications and lineups are conducted. And then we also sort of said to
the people of Illinois, `If you want to have a death penalty, you must be
willing to pay for it.' The fact of the matter is that capital punishment is
more expensive than the alternatives. You have to be willing to fund
defenses, and the state has made a good start in that direction. You have to
have qualified lawyers who, generally speaking, require compensation. You
have to have experts. You have to have psychologists. The state has to pay
for that in most instances. You have to have better training for police, for
judges, for defense lawyers.

GROSS: It's interesting that you say that, because I think most people assume
if you kill the offender it's cheaper than maintaining them in prison.

Mr. TUROW: Right. Right. Just one of many false assumptions about the death
penalty. This has been studied in a number of different jurisdictions. The
most recent one was done in our neighboring state of Indiana, where they
figured that in terms of present dollars, it's about 35 percent more expensive
to impose a capital sentence on somebody.

GROSS: Have you spent much time on death row?

Mr. TUROW: Well, I've certainly been there, yeah. You know, I don't know
what qualifies as much time, but I've probably visited death row 10, 12 times,
and, you know, I've stood in the execution chamber where it now stands in
Illinois. So I've been there, yes.

GROSS: What were your reasons for standing in the execution chamber, and what
was the impact of that on your thinking?

Mr. TUROW: Well, the execution chamber I wanted to see as a member of the
commission. I've never seen an execution, and I was grateful, frankly, that I
didn't have the opportunity while I was sitting on the commission, because I
probably would have forced myself to take advantage of it. But I wanted to go
to the death chamber in Illinois to just sort of confront this. Because the
fact of the matter is that this is an enormously cruel punishment as it is
imposed. You take people who've done, in many, many instances, unspeakable
things, but they have been subdued at that point. Many of them actually
change their behavior in the structure of a prison environment. And, you
know, you take a subdued, captured individual and kill them, and it's deeply
unsettling to the correctional officers who are involved in this. And that's
not to gainsay their belief in capital punishment. I think for most of them
they do believe in what they're doing.

GROSS: Scott Turow will talk more about rethinking the death penalty in the
second half of the show.

I'm Terry Gross, and this is FRESH AIR.

(Announcements)

(Soundbite of music)

GROSS: Coming up, visiting death row to see the so-called poster child for
capital punishment. We continue our conversation with Scott Turow. And we
talk with Illinois state's attorney Mike Waller. Both served on Illinois
Governor George Ryan's commission recommending reforms to the state's capital
punishment system.

(Soundbite of music)

GROSS: This is FRESH AIR. I'm Terry Gross, back with Scott Turow. He's a
lawyer and the author of several best-selling legal thrillers, including
"Presumed Innocent." His new book, "Reversible Errors," is about a lawyer
trying to exonerate a prisoner on death row. Turow recently served on the
Illinois state commission to investigate the fairness of the death penalty.
When we left off, he was telling us why he wanted to visit death row.

I know one of the people you visited on death row was Henry Brisbon.

Mr. TUROW: Right.

GROSS: Who was he? Why'd you visit him?

Mr. TUROW: Well, Henry Brisbon tends to be the poster child for capital
punishment in Illinois. When you talk to law enforcement professionals,
people in the correctional system, prosecutors, police officers, they always
point to Brisbon because in addition to having been convicted twice of murder,
one set of serial murders and another prison murder, he's got an atrocious
disciplinary record, over 250 disciplinary incidents, many of them involving,
you know, serious acts of alleged violence, stabbings, hitting correctional
officers with two-by-fours, throwing a 30-pound dumbbell against the head of
another inmate, severely injuring him, at least according to the prison
official's allegations.

So he is somebody whose propensity to violence and to murder is very
well-demonstrated, and certainly if you're going to execute anybody, somebody
who is a sort of living threat ought to be at the top of the list. So I
wanted to meet Brisbon, but more important, look at the supermax facility at
Thames, the southern part of Illinois, just to see if it really was possible
to restrain the likes of Brisbon with conditions of confinement. Because if
you can't, I was prepared to say that execution in those cases really seems to
me to be just, if not inevitable.

GROSS: So did you feel he was adequately controlled at this prison?

Mr. TUROW: My judgment, and based really on talking with the correctional
officials I did, was that the risks are enormously mitigated. Somebody with
the kind of track record that Brisbon has is not someone with whom
correctional officers are ever comfortable saying he'll never kill again. But
they acknowledge that the odds are dramatically reduced, and certainly they're
reduced enough that they're comfortable walking into the institution every
day. So I think in practical terms, supermax confinement, which is very, very
rugged, is...

GROSS: Why don't you describe how that applies to Brisbon's situation. What
was the supermax aspects of it? What kind of...

Mr. TUROW: Well, supermax is what it means. Generally speaking, prisoners in
the Thames facility and other supermaxes across the United States are
permitted no flesh-to-flesh contact with other human beings. That means if
things go as intended, once you are sent to a supermax and until you are
allowed to leave there, you never touch another human being. In Illinois they
are in cells with a punch plate front which prevents them from being able to
put their hands between bars and do any mayhem that way. It's a small box of
preformed concrete. I've forgotten the dimensions exactly. I'd say roughly
8-by-10. There's almost nothing in there except a single fixture which is a
combination toilet and sink, and a foam mattress over a concrete pallet.

Once a day for about 45 minutes the doors open by remote control. You can go
out, down the end of the galley way to another remote-controlled door and take
fresh air, then you go back to your cell. And five times a week you also get
15 minutes to shower. And the cell itself, as I said, you know, there's a
single window which is up high; it's very narrow. This is not comfortable
living in any way, shape or form.

GROSS: John Ashcroft is insisting that federal prosecutors seek the death
penalty in some cases where the prosecutors had not sought it or had
recommended against it. And this is mostly going on in the Northeast--New
York; I think Connecticut is the other state?

Mr. TUROW: Right. Right.

GROSS: What's your interpretation of what Ashcroft is doing and why he's
doing it?

Mr. TUROW: I think the attorney general can look at what's happening and
realize that the death penalty is not being sought by federal prosecutors on a
reasoned and consistent basis. And so he's forcing them to apply it more
often in the hope that it will become more reasonable and more consistent.
And this is a fairly typical response. It's where Illinois was after the
re-enactment of the death penalty in 1977. And the result is you become
overinclusive in the application of the death penalty. You begin applying it,
in point of fact, to cases where subordinate prosecutors have said the death
penalty ought not be applied. How that ends up being more just is really
confounding to me.

You force the line prosecutor's hand, say, `You've got to seek death in this
case.' And the line prosecutor is already on the record saying, `Well, we
shouldn't do it.' And, again, I don't know if that makes the people who are
listening here feel more confident about the application of the death penalty.

GROSS: Now that we're facing terrorism and trials of people accused of
terrorism, is your thinking related to terrorism and the death penalty any
different from your thinking pertaining to criminal trials, basic criminal
trials and the death penalty?

Mr. TUROW: Well, you know, when you say the state should not kill, the next
question is: Well, what do you do about war? And I do accept war as
inevitable. As a lawyer, I say that the issue of capital punishment is
whether the state should kill its own citizens, not whether it should kill its
foreign enemies. Sometimes it has to do that, and for that reason, I draw a
lawyerly distinction between domestic crime and acts of foreign terrorism.

GROSS: So you could endorse a death penalty for foreign terrorists who've
committed actions against the United States sooner than for American
criminals.

Mr. TUROW: I think the question of whether we execute Osama bin Laden is a
much different question than whether we execute the people on our death rows.

GROSS: Now that you've served on the commission to reform the death penalty,
is the kind of case that you want to take on different?

Mr. TUROW: Well, actually, my own desire is I want to get out of the world of
capital punishment, both as a writer and as a lawyer for a while. It's very,
very consuming emotionally, and I would like to move on, you know, into other
matters.

GROSS: Yet your new novel has to do with capital punishment.

Mr. TUROW: Right.

GROSS: And is that a result of having served on this commission? Which came
first, "Reversible Errors," your new novel, or the commission?

Mr. TUROW: No, actually, "Reversible Errors" was the one impediment to my
accepting a place on the commission when it was suggested that I might be
considered, because I'd already started the novel. And that sprang from, you
know, 10 years of experience as a lawyer involved with capital prosecutions.
And ultimately I think we all sat down and figured, `Well, there is no actual
conflict here,' but I resolved personally that I wouldn't publish "Reversible
Errors" until after the commission had issued its report.

GROSS: Well, Scott Turow, thank you very much.

Mr. TUROW: Thank you, Terry.

GROSS: Scott Turow is a lawyer and best-selling novelist. His latest legal
thriller is called "Reversible Errors."

Coming up, we talk with Lake County, Illinois, state's attorney Michael
Waller, who also served on the commission to investigate the fairness of the
death penalty. He continues to support capital punishment.

This is FRESH AIR.

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Interview: Mike Waller discusses why he supports the death penalty
TERRY GROSS, host:

Before leaving office last month, Illinois Governor George Ryan commuted the
sentences of all prisoners on the state's death row. Two years earlier, the
governor imposed a moratorium on executions and appointed a commission to
investigate the fairness of the death penalty system. Earlier we spoke with
Scott Turow about serving on the commission and how the experience led him to
oppose the death penalty.

Mike Waller served on the commission and continues to support the death
penalty. Waller is the Lake County state's attorney. It's the third-largest
county in Illinois. I asked Waller about the commission's recommendation to
limit the kinds of cases eligible for the death penalty.

Mr. MIKE WALLER (State's Attorney, Lake County, Illinois): Well, the majority
on the death penalty commission, the governor's commission, voted to restrict
the number of eligibility factors in Illinois, basically limiting them to
five. Probably the single most significant factor that was eliminated by the
majority in the commission report was the total elimination of felony murder.

GROSS: What does that mean practically?

Mr. WALLER: Well, that means a murder committed in the course of a kidnapping
or a home invasion or a rape or an abduction of a child would no longer be
eligible for the death penalty under Illinois law if the recommendation of the
majority of the death penalty commission was adopted by the Legislature.

GROSS: And do you agree with that recommendation?

Mr. WALLER: No, I voted against that. And what the majority did, in essence,
was to remove the most brutal and vicious types of murders from eligibility
for potential death penalty. My view is that if you're going to have the
death penalty, that certainly the death penalty should apply to those types of
murders. And we had a case of a defendant in Illinois who subsequently was
executed who abducted a young woman and raped her continuously, actually had
her in the trunk of his car when he went to court here in Chicago. And it was
one of the most brutal and vicious murders, and it was just terrifying for the
poor victim in this case, and under the recommendation of the majority, that
would not be a death penalty eligible case.

You know, you can also get to the issue of whether you should have a death
penalty, and I suspect that maybe the Legislature in Illinois is going to
debate that now because of what Governor Ryan did. But, you know, if you are
going to have a death penalty, in my view it needs to be applicable to the
most horrendous types of murders.

GROSS: Now you've prosecuted a lot of capital cases. One of the arguments
that is often made against the death penalty, that a lot of people who face
the death penalty are poor and they can't afford a really good defense, and
therefore the best case isn't made on their behalf and they're more likely to
get convicted. Have you ever tried a case where you could tell that the
lawyer defending the person wasn't really doing a very good job and so
convicting the person was kind of a piece of cake for you?

Mr. WALLER: No.

GROSS: Did you ever walk away with doubts thinking that you won because of
the incompetence of the lawyer who was defending...

Mr. WALLER: No.

GROSS: No?

Mr. WALLER: No. In my county--and I've tried four death penalty cases--the
judges have always appointed two qualified, experienced lawyers, which is in
conformity with long-standing ABA guidelines. And they've always provided
sufficient funds so the defense can hire experts and do whatever investigation
is necessary. So my experience in Lake County has been that it's been an even
playing field and the sides have been evenly matched.

But what happened in Illinois was, as a result of a very intelligent and
concerted effort, that all of the cases over the course of the 25 years since
the death penalty was reinstituted were all lumped together and the horror
stories that existed with some of the cases--I mean, and there certainly were
some problem cases, and we studied those in detail, as I mentioned, on the
death penalty commission, but they were all lumped together with cases where
there wasn't any issue as to guilt or innocence, and there wasn't any issue as
to competent defense attorney of sufficient funding made available so that
the defense could explore defenses and provide a reasonable defense to the
case.

GROSS: How many of the people who you've convicted have actually been
executed?

Mr. WALLER: Well, not that I personally prosecuted, none have, but two Lake
County cases since the death penalty was reinstituted in 1977 in Illinois have
resulted in executions.

GROSS: And you went to one of those executions.

Mr. WALLER: Right. One of the defendants was convicted and given the death
penalty in three states and he was executed, but he was executed in Ohio. He
wasn't executed in Illinois. The other defendant from a Lake County case was
executed in Illinois, and I did go to the execution.

GROSS: Why'd you go?

Mr. WALLER: I went because as the state's attorney in Lake County, I made the
decision--although I was not the state's attorney when he was tried, but I was
the state's attorney for most of the time when the case was in litigation, and
as you know, the guilty verdict and the imposition of the death penalty is
really only the start of the legal process in a death penalty case. So I had
made the decisions throughout that this was a case--and I had gone down
to--what used to be the last step in the capital litigation process is a
hearing before the Prisoner Review Board in which the defendant requests
clemency from the governor. I had gone down and testified and presented the
case, and I thought as the state's attorney, the person who was ultimately
responsible for the decision, that I should go to the execution.

It was certainly not something that I took any pleasure in doing or did for
any other reason than I thought it was my responsibility and duty to do it. I
can remember clearly the events of that evening, and probably always will.

GROSS: What kind of execution was it, electric chair or...

Mr. WALLER: No, it was...

GROSS: ...lethal injection?

Mr. WALLER: ...lethal injection.

GROSS: Many critics of the death penalty, including Scott Turow, feel that
the death penalty has never been administered fairly, that there are racial
differences, gender differences, class differences, rural vs. urban
differences, and that all those inequities within the system make it
impossible to support the death penalty. Do you agree that there are
inequities within how the death penalty is administered, and how does that
figure into your opinion on the death penalty, your support of it?

Mr. WALLER: Well, I think there are some differences in different parts of
the state as to how the death penalty is administered. That has not affected
my support for the death penalty. I am a state's attorney in a county that's
very diverse and I actually seek the death penalty infrequently. I was the
first assistant state's attorney for a number of years before I became a
state's attorney, and my predecessor, Fred Foreman, did not seek the death
penalty very often. We're very careful; we look for reasons not to seek the
death penalty.

You know, it's sometimes hard to counter the arguments of the people that are
against the death penalty because they sort of lump everything together. You
know, I suppose the only way to really fairly administer the death penalty is
to seek it much more often, for every defendant that commits one of these
terrible crimes. The fact of the matter is that a lot of times decisions are
made not to seek the death penalty in cases that the death penalty could be
obtained, which in my view is not necessarily a bad thing, but on the other
hand it's then used by the anti-death penalty people to say, `Aha, this is not
fairly administered.' So you're sort of damned if you do and damned if you
don't if you're the person making the decision as far as the death penalty
when dealing with the anti-death penalty people.

And I don't begrudge the people that are against us. No, I think there's
certainly a very significant issue, and we're probably the only modern
industrial Western state that has the death penalty. But that's an issue that
needs to be debated in the Legislature.

GROSS: Were you offended or angry when Governor Ryan turned around the death
penalty...

Mr. WALLER: Yes, I was. I was offended and I suppose I was angry in what he
did. What he did really undid 25 years of litigation, and like I mentioned,
he lumped together all the cases and he had preceded his decision by--in
Illinois we have a process where there's--a petition for clemency is filed and
we had hearings in 140-some-odd cases this fall which involved a tremendous
amount of work and involved a tremendous amount of heartache and emotional
reaction on the part of the family members of the victims.

And all this evidence was presented to the Prisoner Review Board, which made
recommendations to the governor, and according to the reports, although the
specific recommendations are confidential, they recommended that no action or
no commutation be taken in the overwhelming majority of the cases. And
according to published reports, they recommended that there be some action
taken in fewer than 10 cases.

And then Ryan, who had continuously assured everybody that he wasn't going to
issue blanket commutation, did. And the way he did it was to hold like a pep
rally at Northwestern University, which was televised on TV. And it was
just--it was very poorly thought out, considered, and the way he did it was--I
describe it as a travesty of justice, which I think it was and it is.

GROSS: Is there a part of you that respects the governor for acting on his
conscience even though you disagree with him?

Mr. WALLER: I'm not sure that he--you know, everything you read about him and
see the way he administered things and the way he ran the Office of Secretary
of State and the way he acted as governor, you know, I--if a governor like Jim
Edgar or Jim Thompson, whose integrity and credibility is unquestioned, had
made the decision, I think maybe I would say, `OK, I disagree with them but I
certainly respect them.' But I will only say that I disagree with George Ryan
and I have no respect for his decision.

GROSS: My guest is Mike Waller, Lake County, Illinois, state's attorney.
We'll talk more about the death penalty after a break. This is FRESH AIR.

(Soundbite of music)

GROSS: My guest is Mike Waller, Lake County, Illinois, state's attorney.
We're talking about his experiences serving on a commission appointed by
Illinois Governor George Ryan to investigate the fairness of the death penalty
system. Last month, just before leaving office, the governor commuted the
sentences of all prisoners on death row.

Since everybody on death row had their death sentences commuted by Governor
Ryan, if you get a case tomorrow that you think should be tried as a capital
case, would you go for the death penalty or just not bother?

Mr. WALLER: Well, what I will do, and what I have done--I actually had one
case since then where I made the decision--is to use the same approach that
I've always used, which is to thoroughly investigate the facts and
circumstances of the case and thoroughly investigate the background of the
defendant, to consult with everybody involved in the case and then make a
decision. And actually I did that in a case after Ryan commuted the sentences
of the 167 people on death row, and my decision was not to seek the death
penalty. But my approach to this is going to be the same as it's always been,
is to try to make a reasoned and informed judgment. And it's not just, you
know, don't bother, 'cause it's too serious and difficult of a question, and
in the appropriate case, I would seek the death penalty.

GROSS: Attorney General John Ashcroft is insisting that the death penalty be
applied in 10 cases in New York even though the US attorneys there decided to
forgo the death penalty. And Ashcroft is overturning what they wanted.
What's your opinion about how he is handling this? And what do you think the
point of it is?

Mr. WALLER: Well, I think he should rely on the judgment of the US attorneys
in the districts that made those decisions. They're in much closer contact
with the facts of the case and probably the realistic possibility of receiving
the death penalty. I think Ashcroft ought to defer to their considered
judgment. He obviously has his own agenda.

GROSS: It seems to you like an agenda? And what do you think the agenda is?

Mr. WALLER: Well, he's obviously very pro-death penalty. I mean, personally
having made the decision and having had a great deal of experience, you know,
I don't think that he ought to countermand the considered judgment of the US
attorneys that made those decisions. They're not exactly bleeding heart
liberals and, you know, I'm confident that they looked at all the facts and
circumstances and a lot of other issues involved in it and made a reasonable
decision. And I think Ashcroft should have gone along with it.

GROSS: You served on Governor Ryan's commission to reform the death penalty.
What do you think is the greatest contribution that commission made?

Mr. WALLER: Well, I think that the report and the issues that we discussed
certainly provide a framework for a discussion about all the issues that
surround and impact the death penalty. And it'll be the basis for discussion
here in Illinois and other parts of the country. But the fact of the matter
is that, to the people that are against the death penalty, none of this makes
any difference because the only thing that they want to see happen is not to
have a death penalty, which again, as I've said I think a couple of times, I
think is a reasonable view to have. And if the Legislature in this state
decided that we weren't going to have a death penalty, that would be the law
and that would be fine with me.

When I first worked as a prosecutor in the 1970s, we didn't have a death
penalty. And, you know, the system operated fine and cases were effectively
prosecuted and the lack of a death penalty did not hamstring the system.

GROSS: Did you prefer working in an environment where you didn't have that on
your head, where it wasn't your responsibility to decide whether or not you
should call for taking somebody's life?

Mr. WALLER: Well, I wasn't the person making the decisions in those days, but
it certainly was easier to be the state's attorney in a state or at a time
when we didn't have the death penalty than when we do have the death penalty
because the most difficult decision that a state's attorney or a district
attorney or a prosecutor ever has to make is whether or not to seek the death
penalty. But as far as preferring it, you know, I took an oath to enforce the
law, and that's the law of the state of Illinois. So I feel that it's my duty
and my obligation to consider that in the appropriate circumstances.

GROSS: Well, Mike Waller, I want to thank you very much for talking with us.

Mr. WALLER: OK. Well, thank you.

GROSS: Mike Waller is the Lake County, Illinois, state's attorney. He served
on the governor's commission to investigate the fairness of the death penalty
system. Earlier we heard from Scott Turow, who also served on the commission.

(Credits)

GROSS: I'm Terry Gross.