Originally Posted by Joe Obenberger

A few years ago, I was attending a continuing legal education seminar at Northwestern Law School here in Chicago - and we had a presentation by Governor Ryan about the death penalty. During his remarks, he announced that he would be commuting all of the death sentences in Illinois later in the day. He explained himself. He said that by training and early experience, he was a pharmacist and that he tended to use a pharmacist's perspective in broader application. He noted that medicines that are not safe or effective need to be pulled from the shelves - and he said that, based on the many cases he'd seen as Governor of Illinois, that the system of capital punishment simply was not reliable. It was broken and ineffective. He pointed to seven instances of innocent men who had been scheduled for execution before their innocence was finally proven. In one of those cases, involving Rolando Cruiz, he'd been convicted three times before three separate juries of the sexual assault and murder of a little girl home sick from school. The case was sent back for a retrial by appellate courts twice because it felt that he'd been denied a fair trial. That's thirty-six men and women, each sworn upon their oaths not to convict anyone unless they were convinced beyond a reasonable guilt. They not only had to believe he was guilty, but they swore to convict only if there was no doubt about it. They were all wrong. Not only was there doubt, in fact he was not the perpetrator at all. Rolando Cruiz was never there, had never met the girl, and was guilty of nothing. The other six cases had facts just as compelling. Since Illinois finally got around to abolishing capital punishment by statute a few years ago, a whole raft of wrongful convictions have emerged, some after men have spent as much as thirty years in prison for rapes they never committed and for murders when they were never at the crime scene. Some of their convictions came from torture used in extracting false confessions. Other times, law enforcement just hid evidence inconsistent with their theories of guilt. There was substantial gamesmanship by the prosecutors in Lake County and a series of convictions were recently reversed. It is an ugly, human, imperfect system by which we try defendants, and it is prone to make serious mistakes, as it reliably does, like every other invention of men. Yes, as suggested above, sometimes the attorney is incompetent, though this is probably not as frequent as defendants claim. No, attorneys cannot hide evidence and then release it later for an appeal; appeals courts do not ordinarily hear any evidence at all. In fact, hiding evidence is the kind of thing that deserves disbarment and actually gets that punishment.

Why are there a succession of appeals and post-conviction procedures? In some cases, they guy on death row didn't get a fair trial and the appeals courts have had to repeatedly send the case back so he gets his due - only to have the trial courts screw up again, as they did with Rolando Cruiz. Sometimes it's because his prior lawyers were not competent. Sometimes, there is newly discovered evidence - this is never a sure thing, because, believe it or not, that does not always entitle someone to a new trial. There are new developments in science - read DNA tests - that were unavailable at the time of trial and which can emerge to prove actual innocence Sometimes, the higher judges change the law and fairness requires that before someone is executed, he have the benefit of the changed law. Sometimes, it takes decades for a witness to come forward who was actually present and sometimes they are deathbed confessions by the actual criminal. Sometimes, it takes decades for witnesses to come forward and tell the story of how they were forced or intimidated into their testimony for the prosecution. Sometimes the courts give rulings that resemble the issues in a particular death penalty case and it becomes important to litigate about whether it makes a difference germaine to the conviction of another. No one accepts any of these things without confirmatory evidence. Defending these death row people is a thankless, painful, and quite difficult job.

Please remember -

1. If accused persons have rights, it is not because they are accused criminals. It is because they are Americans. Though an accused person loses his freedom when he is locked up and denied bail, and likely loses his job and family, and never gets those things back in most cases if the cops were wrong, one thing he doesn't give up are the rights that are assured to all Americans. The rights of defendants are simply the rights of all of us, and it is hard to know whether any of us will require them at some point or another. If you weaken the rights of any accused person, you weaken them for yourself and for the people close to you. When rights are taken away, they rarely come back.

2. There is no constitutional right to "closure". That is the buzzword that the media and people close to a victim choose to use when they are out for the blood and scalp of a defendant. Look, when someone close to you is killed or dies, there never is any closure. You will always miss that person and sometimes forget that they are even dead for a moment. That does not change because someone is executed. And no one has a right to "closure" so important that it is worth the life of another.

3. One would think that in a country dominated by a religious belief founded by a wrongly-convicted and wrongly executed Jesus Christ that there just might be some sensitivity to the subject. But one would be largely wrong.

4. The State does not give us life and it's hard for me to understand any integrity in a belief that it should have the power to take life from anyone. There are those of us who believe that our lives do not even belong to us, ourselves.

5. For a short time in my life amounting to a year, I prosecuted men and women in the name of the United States of America, got convictions and got heavy sentences. Not one of the defendants I prosecuted at trial was acquitted. To one with the right disposition, it is an extremely humbling experience. One quickly learns the frailties of human memory and testimony and just as rapidly absorbs the full impact of one's role in utterly destroying the life of another human being. I tried only men and women who I thought were truly criminals and justice was done. But the truth is that it brought no joy to destroy lives, even when that was the just result. No human institution is perfect. I believe that, if for no other reason than the imperfection of our system, our government has no legitimate right to decide when a life is to be taken. Life is sacred and belongs to the Creator. We do not make it more sacred by vindicating crime with death. In fact, we debase life and grow the power of the state.

6. No one will ever be able to count the number of persons who have been executed in this country on the basis of erroneous convictions. Multiple levels of appeal and review may decrease the number, but it can never eliminate the execution of innocent Americans.