'I knew I had to take on the case'

When lawyer and novelist Scott Turow took on the appeal of Alejandro Hernandez, he was daunted. Hernandez had been convicted of a brutal child murder. Here, Turow unravels the flawed conviction of an innocent man - and recalls how it turned him against the death sentence

Friday January 30, 2004
The Guardian

For most Americans, the death penalty debate goes no further than asking whether they "believe" in capital punishment. Many death penalty opponents who root their position in religious or spiritual convictions treat those who favour death sentences as barbarians or wanton sinners. Supporters of capital punishment frequently characterise those on the other side as bleeding hearts and hypocrites who would not feel the same way were it their loved ones who had been murdered. Almost no one feels detached about capital punishment.

But when people asked me, I referred to myself as a death penalty agnostic. Every time I thought I was prepared to stake out a position, something would drive me back in the other direction. I still hung in a sort of ethical equilibrium, afraid to come down on either side of the question of whether capital punishment was actually right or wise, when in 1991 I was asked to take on the pro bono appeal of Alejandro Hernandez. By then I was in private practice as a partner in the Chicago office of Sonnenschein Nath and Rosenthal, a large national firm.

I had known of Hernandez for nearly a decade as a co-defendant in what the press commonly referred to as "the case that broke Chicago's heart". On February 25 1983, Patricia Nicarico, who worked as a school secretary in Naperville, a suburb outside Chicago, had returned home to discover that her front door had been kicked in and that her 10-year-old daughter, Jeanine, was missing. Two days later, the girl's body, blindfolded and otherwise clad only in a nightshirt, was found in a nearby nature preserve. She had died as the result of repeated blows to the head, administered only after she had been sexually assaulted in a number of ways. A taskforce of more than 40 law enforcement officers was established to hunt down the killer, for whose capture a $10,000 reward was offered.

By early 1984, the case had still not been solved, and a heated campaign was under way for the job of state's attorney in DuPage County. A few days before the primary, on March 6 1984, Alex Hernandez, Rolando Cruz and Stephen Buckley were indicted - even though, six weeks earlier, the state's attorney had said that there was insufficient evidence to indict anyone.

James Ryan won the election and became the new DuPage county state's attorney. Ryan's new office took the case against the three defendants to trial in January 1985. The jury deadlocked on Buckley, but Hernandez and Cruz were both convicted and sentenced to death.

There was no physical evidence against either of them - no blood, semen, fingerprints, hair, fibre, or other forensic proof. The state's case consisted solely of each man's statements, a contradictory maze of mutual accusations and demonstrable falsehoods. Before the case reached me, the Illinois supreme court, in 1988, had reversed the original convictions and ordered separate retrials. Cruz was convicted and sentenced to death again in April 1990. The jury hung in Hernandez's second trial, but the state put him on trial for his life a third time in May 1991. He was found guilty but sentenced to 80 years, rather than to execution.

When Hernandez's trial lawyers approached me, they made a straightforward pitch. Their client was innocent. I didn't believe it. I knew how the system worked. Convict an innocent man once? Not likely, but possible. Twice? Never. And even if it were true, I couldn't envision convincing an appeals court to overturn the conviction a second time. Illinois elects its state court judges, and this was an infamous child murder.

The lawyers begged me to read the brief that Larry Marshall, a renowned professor of criminal law at Northwestern University, had filed on behalf of Cruz, and to look at the transcripts of Hernandez's trials. By the time I had done this, six weeks later, I knew I had to take the case or stop calling myself a lawyer. Alex Hernandez was innocent.

In Illinois, in the past 25 years, approximately one in every 50 convictions for first-degree murder has resulted in a capital sentence. In other words, capital punishment is reserved for "the worst of the worst", that is, those crimes which most outrage the conscience of the community. Paradoxically, this makes for the capital system's undoing, because it is these extreme and repellent crimes that provoke the highest emotions that in turn make rational deliberation problematic for investigators, prosecutors, judges, and juries.

Under enormous pressure to solve these cases, police often become prisoners of their own initial hunches. A homicide investigation is not an academic inquiry allowing for evenhanded consideration of every hypothesis. There is a strong emotional momentum to adopt any explanation. Cops often feel impelled to take the best lead and run with it.

A few weeks before Jeanine's murder, the Nicaricos had hired a Spanish-surnamed cleaning lady who turned out to have a son with a burglary record. He ultimately proved to be blameless in this case, but from that start grew the police theory that the crime had been intended to be a burglary, committed by a gang of Hispanics - even though no valuables were missing from the Nicarico house. Hernandez fitted an existing preconception, a theory to which many officers became wedded the longer it persisted, making it virtually impossible for them to accept the fact that a white serial rapist was the actual culprit.

In June 1985, a few months after Hernandez and Cruz were first convicted, another little girl, Melissa Ackerman, aged seven, was abducted and murdered in LaSalle County, about an hour's drive from Jeanine's house. Both Melissa and Jeanine were kidnapped in broad daylight, carried away in blankets, sodomised, and murdered in a wooded area. A man named Brian Dugan was arrested for Melissa's murder. In the course of complex plea discussions, his lawyer said that Dugan was prepared to plead guilty not only to the Ackerman killing but to a host of other crimes, including raping and killing two more females. One of them was Jeanine Nicarico.

Two prosecutors from DuPage County met Dugan's lawyer, but after returning to their office, they refused to accept Dugan's statements or to deal with him further. (Nor did anyone from the DuPage office inform the lawyers for Cruz and Hernandez that another man was prepared to admit to the murder.)

Faced with DuPage's response, one of the LaSalle county prosecutors contacted the Illinois state police to be certain that someone looked into the matter. The state police investigated Dugan's admission that he was the lone killer of Jeanine.They concluded that DuPage had convicted the wrong men. Dugan was not at work at the time of the murder, and a church secretary recalled speaking to Dugan two blocks from the Nicarico home that day. A tyre print found where Jeanine's body was deposited matched the tyres on Dugan's car. Subsequently, a series of DNA results that excluded Hernandez and Cruz as Jeanine's sexual assailant pointed directly at Dugan.

Despite all this, the DuPage county prosecutors attempted, for a decade, to debunk Dugan's confession. Even after Cruz's and Hernandez's second convictions were overturned in July 1994 and in January 1995 as a result of the separate appeals Larry Marshall and I argued, DuPage continued to pursue the cases.

If law enforcement professionals respond in this fashion to the emotion alism of grave crimes, it is foolhardy to expect anything better from the lay people who sit on juries.

By the time of Hernandez's third trial, in May 1991, the evidence against him was so scant that the DuPage county state's attorney's office actually sought an outside legal opinion to determine whether they had enough proof to get the case over the bare legal threshold required to ask a jury to decide the matter. John Sam, one of the lead detectives on the case, had quit the force because he believed DuPage had accused the wrong men. And a key prosecution witness and former friend of Hernandez, Armindo Marquez, had now disavowed his earlier testimony.

Instead, the state tried to offer the Marquez evidence through a police officer who had been outside the room where Marquez and Hernandez met. But the officer couldn't understand Spanish, in which he acknowledged most of the conversation was conducted. And he conceded that he had destroyed his notes and that what he had written down at the time wasn't verbatim. But even though a veteran trial judge couldn't place any meaning on what he referred to as "the one statement that tied this defendant indirectly to involvement in the death of Jeanine Nicarico", the jury convicted.

The case demonstrated to me the propensity of juries to turn the burden of proof against defendants accused of monstrous crimes. The notion of a 10-year-old girl being overpowered by an intruder and dragged from her home, sexually tortured, and then beaten to death is so revolting that I used to explain Alex's and Rolando's convictions by saying that I thought Mother Teresa might have been in jeopardy if she were in the defendant's seat. Jurors are unwilling to take the chance of releasing a monster into our midst, and thus will not always require proof beyond a reasonable doubt.

In the circumstances, the judge was not empowered to overturn the jury's verdict; the best he could do was refuse to impose a death sentence and give Alex 80 years. Only after Cruz was acquitted in his third trial, in late 1995, were both men at last freed.

Hernandez and Cruz are but two of 17 men in Illinois who, since the state re-established capital punishment in 1977, have been sentenced to death and later legally absolved of the murder for which they were convicted.

In confronting murder, we as a society ask how we should face an ultimate evil. I have occasionally wondered, as I have listened to the surviving families of murder victims if, in some shadowed place in their heart, is the hope that the death of the killer will somehow restore their lost loved one to life. And I have always suspected that what we want most from punishment, beginning with the moments when we first hit someone back as young children, is restoration. The pain will leave us and go instead into the person we hurt.

The legal process will never fully heal us. The failure of the law to deliver all that we ask from it is probably the essential theme of all of my novels. The law neither finds the truth nor dispenses justice with the reliability it is obliged to claim. The law's sharp-edged rules never cut through the murk of moral ambiguity, nor do they fully comprehend or address the complexities of human motivation and intention. And just punishment alone does not render the world one we want to live in.

Murder takes us to the Land's End of the law. Our horror and revulsion undermine our capacity to reason - and prove that justice alone will not make us whole. In the face of the cruelties we visit upon one another, murder being the gravest wrong among them, a sense of meaning and connection must come from outside the law.

· Ultimate Punishment: A Lawyer's Reflections on Dealing With the Death Penalty, by Scott Turow, is published by Macmillan.
Guardian Unlimited © Guardian Newspapers Limited 2004

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To those who argue that the death penalty is just -

The argument about the emotional sentence of the death penalty in certain cases and of course, the vast racism that occurs in these cases goes well with the case against the death penalty. One thing that emotions can never take is the fact that many persons who have been imprisoned for crimes they did not commit are being exonerated as a result of DNA testing that was not available when the crime was committed. How do we exonerate and make reparations to a dead man or woman?

Another question is simple. You mention that it costs the state more to house an inmate than to commit a death penalty. Wrong.  It costs much more in appeals and time to kill a prisoner than to keep him behind bars for life.

Much of the rhetoric about the death penalty is brought about by the politicians fear tactics about the outrage of crime. We have become a society of people who feel that the politician, the justice system, and the police are our only hope in stopping crime. When in fact, most (thinking) folks recognize the inequities of these systems.

Politicians use this fear tactic the same way that batterers use it on their victim: learned helplessness. If they keep telling us over and over that the only way to "cure" the wave of crime is to imprison and then kill the perpetrator, and follow that up with horror stories about victimization that has occurred in the past, then we are an unwitting supporter of a system that has manipulated us to think that we must kill in order from justice to be served, or in order to keep our families safe.

The death penalty does not deter crime. The prison systems, first meant to rehabilitate and now run as a for-profit venture, are filled with people who were addicted to drugs at the time of their crime. Many of these crimes are not violent. The disease of addiction is one that does not show the addict the consequences of his/her actions until the addict gets clean and looks upon their past. Believe me. I sit in 12 step meetings with people you may have wished were
given the death penalty and they are now leaders in their community and churches.

A simple faith in the human psyche is brought to light when one endures the hell of addiction and wakes up to discover that her best friends are ex-cons. Worse yet, that they could have been killed and never given the opportunity to live in the freedom that is recovery and make reparations to their community.

Since two cents isn't worth much any more, and I don't know where the cents sign is on this old Mac, I'll just say that "there is my nickel's worth" and hope you have a great day.

With respect and solidarity,
lisbeth west

-
Until the lions have their own historians,
tales of hunting will always glorify the hunter.    -African Proverb

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