The Jan. 6 issue of the New Yorker has an article by author and former federal prosecutor Scott Turow titled To Kill or Not to Kill: Coming to Terms with Capital Punishment.

Turow served on Illinois Governor Ryan's Commission on Capital Punishment, formed after Ryan declared a moratorium on the death penalty in January, 2000. The purpose of the commission was to study what went wrong in Illinois and to make specific recommendations about how to fix the state's broken death penalty system. The Commission issued this report, containing 85 specific recommendations. Not one has been adopted by the Illinois legislature, prompting Governor Ryan to consider blanket clemency for all on death row, a decision he is still contemplating in his final weeks of office.

First, Turow explains who served on this Commission: Two sitting prosecutors; two sitting public defenders; a former Chief Judge of the Federal District Court; a former U.S. senator; three women; four members of racial minorities; prominent Democrats and Republicans. Twelve of us were lawyers, nine with experience as defense attorneys and eleven—including William Martin, who won a capital conviction against the mass murderer Richard Speck, in 1967—with prosecutorial backgrounds."

Turow recounts that at the press conference announcing the Commission, the members were asked whether any of them opposed capital punishment. Four people raised their hands, Turow's was not among them.

Turow did not confront the death penalty as a federal prosecutor because during the years he served in that capacity, there was no federal death penalty. It had been declared unconstitutional by the Supreme Court in 1972 and was not re-enacted until 1988, by which time Turow was in private practice.

In 1991, having already published two novels and not hurting for money, Turow could afford to take pro-bono cases, and he did--including an ugly death penalty case.

In February, 1983, a ten-year-old girl, Jeanine Nicarico, was abducted from her home in a suburb of Chicago, in DuPage County. Two days later, Jeanine's corpse, clad only in a nightshirt, was found by hikers in a nearby nature preserve. She had been blindfolded, sexually assaulted several times, and then killed by repeated blows to the head.

In 1991, Turow took on the appeal of Alex Hernandez, who had been convicted of the Jeanine Nicarico's murder, along with Rolando Cruz and Stephen Buckley. The investigation into the murder had gone nowhere for over a year, and then, just days before a politically charged election, the three were arrested and charged with the girl's murder. The incumbent in the race lost the election anyway, to a local lawyer named Jim Ryan. You've probably heard of him by now because he has been the Attorney General of Illinois for the past several years and just ran for Illinois Governor and lost. He was also the prosecutor in the third and final trial of Hernandez and Cruz.

Turow reviews the case history, which includes convictions of Cruz and Hernandez, reversals on appeals, retrials and again, convictions. (The state dropped the case against the third defendant.) There was no physical evidence linking Cruz or Hernandez to the crimes. Another rapist named Dugan had confessed to the murder but was disregarded by the prosecutors. Turow entered the case for Hernandez after reading the transcripts, reviewing the evidence and becoming convinced Hernandez was innocent. He won the second appeal for Hernandez, but that wasn't the end of it. Even after Cruz's and Hernandez's second convictions were overturned in the separate appeals that Larry Marshall and I argued, and notwithstanding a series of DNA tests that excluded Cruz and Hernandez as Jeanine Nicarico's sexual assailant, while pointing directly at Dugan, the prosecutors pursued the cases. It was only after Cruz was acquitted in a third trial, late in 1995, that both men were finally freed." That still wasn't the end of the case.

A special grand jury was convened after Cruz and Hernandez were freed. Three former prosecutors and four DuPage County police officers were indicted on various counts, including conspiring to obstruct justice. They were tried and—as is often the case when lawenforcement officers are charged with overzealous execution of their duties—acquitted...

Despite DNA tests linking Dugan to the murder, he has never been charged.

Turow uses this case and others as a springboard to discussing the pros and cons of the death penalty, his own turmoil and going back and forth on the issue and why he ultimately concluded, after two years of serving on the Commission, that despite those cases in which it might be appropriate, Illiniois should not have a death penalty.

Turow makes a compelling case, and we encourage you to take the time to read the whole article.

(Link via Hamster.)