The Journal of The DuPage County Bar Association

Back Issues > Vol. 12 (1999-00)

The Death Penalty Debate in Illinois
By John J. Kinsella, J.D.

The current death penalty debate in Illinois has given rise to dramatic action, impassioned rhetoric, and often, inaccurate claims. The dispute has historically been extremely emotional and controversial. Many people legitimately have strong feelings on either side of the argument. As can occur when passions run deep, however, the words may get ahead of the truth. I recognize that as a career prosecutor, I will be judged as having a biased point of view, despite my efforts to the contrary. Nevertheless, I will attempt to bring some balance and perspective to this debate.

Certainly, no one wants to see an innocent person convicted of any crime, let alone sentenced to death. Yet, how we determine someone’s legal responsibility for a crime is not a new debate. Our system of Anglo-American justice has been struggling with this controversy from its inception. Our system of justice has developed over hundreds of years. The law is constantly evolving, and will continue to evolve in a rich tradition of adjusting to society’s view of justice. Ultimately, we must hope that less reactionary thinking will prevail, and what emerges from the debate will be based upon a rational and factually accurate legal analysis.

Whether you maintain that the death penalty is appropriate in certain cases or consider it to be immoral and unjust under any circumstance, you must agree that the debate should be conducted with both truth and candor. The current debate in Illinois largely has been the product of death penalty opponents taking the debate away from the rational arguments of morality, ethics, and deterrence, for such arguments have simply failed to sway public opinion or public policy. The new strategy is to attack the justice system as a whole, arguing that if you cannot trust the police, the prosecutor, or the courts to do the right thing, you cannot have the death penalty.

On January 10, 1999, the Chicago Tribune joined the cause by condemning prosecutors nationwide for what it characterized as a history of misconduct in all murder prosecutions and claiming that innocent men were sentenced to death.1  Very questionable statistics were used to support the allegation that prosecutorial misconduct was a nationwide systemic problem.2  The January 10th article was followed by four others focused on the purported "problem" of prosecutorial misconduct in Illinois.3  Then, in November 1999, the paper specifically addressed the death penalty debate in Illinois.4 

The paper stated its opinion: the death penalty was the least credible form of punishment in Illinois.5  The premise of the series, entitled "The Failure of the Death Penalty in Illinois," was supported by profiling a few individual cases ostensibly demonstrating the systemic shortcomings of capital litigation in Illinois.6  These case profiles focused on ineffective assistance of counsel, use of incompetent forensic evidence, use of jailhouse informants, and allegations that a former Chicago Police Commander tortured confessions out of certain death row inmates.7 

Throughout this debate, supporters of abolishing the death penalty have focused on initially ten, then twelve, and now thirteen exonerated men who have been freed from death row. These proponents have erroneously described the "exonerated" individuals also a being "innocent." The Tribune, for example, concluded that these "exonerated" defendants were indeed "innocent" men sent to death row by "a system tainted by bias, misconduct and incompetence."8  The rhetoric in the national arena has essentially destroyed any real distinction between the two terms, and death penalty opponents have pronounced that those thirteen innocent men wrongly prosecuted and falsely convicted were spared death by the heroic intervention of journalists. Though such a perspective creates a compelling story, such a grossly oversimplified and inaccurate characterization of these vastly different and unique cases greatly distorts the truth. The result of such distortions is a potentially dramatic change in the law based upon misperceptions of the facts and a lack of understanding of the issues.

There is a real and meaningful distinction between one who is found "not guilty," or who is otherwise exonerated, and someone who is actually innocent. How many people would be willing to concede that O.J. Simpson was found innocent or was wrongfully prosecuted? Yet, those opposing the death penalty believe that an acquittal is equal to proof of innocence and demonstrates the wrongfulness of the prosecution. If that position were taken to its logical conclusion, then every acquittal or dismissal no matter the circumstances would produce the defendant’s innocence and prosecutorial misconduct. The reliance many death penalty opponent’s place on such irrational, over broad statements, which place vastly different and unique cases into a single convenient, simplified category, reveals that the end (death penalty elimination) justifies any means necessary to achieve that goal.

The true difficulty in the term "exonerate" is that, despite its technical correctness ("to clear from accusation or blame"9 ), its use may cause individuals to reach the conclusion that the underlying prosecution was "wrongful" because the accused was in fact innocent. Such specious reasoning suggests that an acquittal or dismissal, under any circumstances, means the prosecution was somehow corrupt and flawed from its inception and the evidence did not warrant prosecution. Following the logic of this argument, anyone ever acquitted for any reason was in fact innocent and wrongfully prosecuted. This, of course, is not true.

Unfortunately, at least one member of our Supreme Court apparently failed to make the foregoing distinction. In People v. Bull,10  Justice Harrison, dissenting, simply accepted as true and accurate the accounts and conclusions of the press. Astonishingly, Justice Harrison declared that Rolando Cruz was "ultimately determined to be innocent."11  Nowhere had such a determination been made other than in some press accounts. How could a Justice of the Supreme Court make such a statement? No court of law made such a

finding; not even the Judge who acquitted Cruz made such a bold statement. Perhaps if Justice Harrison had the benefit of knowing how the jurors who heard the subsequently completed DuPage 7 trial felt, he would not have been so quick to adopt such a personal opinion as fact.12  It was widely reported that those jurors believed from the evidence they heard that Cruz was not innocent. The truth is that our criminal justice system does not establish innocence. The State, within the established rules, must attempt to prove guilt beyond a reasonable doubt. Beyond that, it is entirely a matter of personal opinion whether the person charged was in fact innocent. Over the years many guilty individuals have walked out of courtrooms after having been acquitted. For a judge to state a personal opinion speculating upon whether that occurred in Cruz’s case is simply inappropriate.13 

Ironically, many of the same critics of capital punishment in Illinois refuse to characterize the seven acquitted law enforcement officials from the DuPage Seven case as "innocent" or "wrongfully" prosecuted. To this authors’ knowledge, no mainstream press organization has ever described the outcome of the DuPage Seven as an "exoneration." To the contrary, it is only reported that the defendants were acquitted or found not guilty. This is not to suggest that the same distorted reasoning should be used in the case of the DuPage Seven as has been used in the exonerated thirteen. Many people have strong personal opinions about the innocence of the DuPage Seven, and certainly they are free to express their views regarding the case. Similarly, there are compelling grounds to criticize the special prosecutor for even bringing the charges. It does raise the question, why have many reporters pronounced the thirteen "innocent," and yet, not described the DuPage Seven as equally "innocent," or wrongfully prosecuted? Arguably this suggests some bias on their part and implies a motive behind the distinction – ends justifying the means.

Justice Freeman writing for the majority in People v. Bull, made the appropriate observation when he pointed out that the current attack upon the death penalty is essentially an attack on our system of justice.14  He stated that the "defendant’s strident protest is against the concept of the Anglo-American criminal trial itself as a the means of determining the guilt or innocence of an accused."15  Justice Freeman went on to note that the American criminal justice system "provides the maximum protection necessary to guard against mistakes being made." 16  Freeman acknowledged that mistakes can and will be made, because it is a system operated by human beings, but it is designed to guard against injustice and is the best possible system.17  The Court went on to discuss two of the so-called thirteen "innocent" defendants, discussing the procedural history of the Burrows18  and Gauger19  cases and correctly concluding that: "In these two cases, the criminal justice system, with its many procedural protections, operated as it should to ensure that only truly guilty defendants are convicted."20  The distinction being made by the Court is that it is not a matter of attempting to determine whether Gauger or Burrows were actually innocent, but whether the system was able to provide each defendant with a just remedy specific to the peculiar facts of their individual cases. There has not and will not be any factual resolution beyond the actuality that the cases were dismissed by the State, and therefore, there only can be a speculative opinion as to whether they were in fact guilty. Justice in the individual cases warranted the termination of their prosecutions; not a determination or finding of actual innocence.

Interestingly, in People v. Smith,21  the Illinois Supreme Court opinion discussed the concept of declaring an acquitted person innocent. Smith was convicted by two separate juries in Cook County and was sentenced to death twice.22  The Supreme Court, as noted below, reversed his conviction outright, finding that a key eyewitness was so severely impeached that no reasonable trier of fact could find her testimony credible. However, the Court went on to add:

While a not guilty finding is sometimes equated with a finding of innocence, that conclusion is erroneous. Courts do not find people guilty or innocent. They find them guilty or not guilty. A not guilty verdict expresses no view as to the defendant’s innocence. Rather, it indicates simply that the prosecution has failed to meet its burden of proof. While there are those who may criticize courts for turning criminals loose, courts have a duty to ensure that all citizens receive those rights which are applicable equally to every citizen who may find himself charged with a crime, whatever the crime and whatever the circumstances. When the State cannot meet its burden of proof, the defendant must go free. This case happens to be a murder case carrying a sentence of death against a defendant where the State has failed to meet its burden. It is no help to speculate that the defendant may have killed the victim. No citizen would be safe from prosecution under such a standard.23 

Notwithstanding this compelling rationale from the Illinois Supreme Court, the debate in this State is largely premised upon such speculation. Those attacking the death penalty in Illinois have done exactly what the Supreme Court declared ought not be done. They have taken the defendant’s acquittal by the Court and declared him innocent. Speculating that the defendant was indeed innocent, however, is just as illogical as speculating that the defendant was in fact guilty. How can a fair-minded commentator simply ignore these admonitions and state as fact something that is specifically determined not to be true from the very source relied upon for their conclusion?

The various judicial opinions in the Bull case typify the nature of this debate. The debate is a hot button topic that can escalate rhetoric and cause advocates to abandon reasoned thought and appeal to emotional reactions. An innocent person being falsely accused and wrongly convicted is the typical sensationalism found in a Hollywood script. Reality, in contrast, is hardly ever so dramatic, exaggerated or compelling. Justice Harrison, in his dissent in Bull, completely adopted the argument that the system is too imperfect and unreliable to be entrusted with the death penalty.24  He declared that the "exonerated" defendants were in fact innocent and wrongfully convicted, and then challenged the integrity of his colleagues on the Supreme Court.25  He suggested that they will one-day feel ashamed for not adopting his viewpoint.26 

Responding to Justice Harrison’s attacks, Justice Miller articulated his thoughts about the debate, when he wrote:

The terms of the debate, however, must be framed by civility and respect, and not by suspicion and untruths. When rancor eclipses reason, the quality of the debate is diminished, the bonds of collegiality are strained, and the judicial process is demeaned.27 

This is not to say that none of these men are in fact innocent. Anthony Porter, for example, actually appears by all accounts to be innocent. Other individuals also may be in fact innocent. The point is that no court has, or, in all likelihood, will ever make any declaration of innocence. In most of these cases the police and prosecutors maintain that the prosecutions were appropriate not only because of the current law, but also because the evidence, in their view proved guilt beyond a reasonable doubt. The circumstances surrounding Anthony Porter should give us all cause for serious concern, and the fact that there may be other Anthony Porters should render that concern no more serious. The question remains, does an erroneous verdict in one case suggest we abandon the just verdicts of so many hundreds of other cases, or should we focus on what went wrong in that case and examine why it happened in that case?

I was astonished when I first heard media reports suggesting that the criminal justice system in Illinois, with respect to capital punishment, only got it "right" half the time. The reports claimed that because twelve men had been executed and twelve (at that time) had been exonerated, the state was only "right" half the time. The logic of this argument is simply untenable. Yet, this argument has been made publicly and has taken hold in some circles. When expressing an opinion regarding a person’s guilt or innocence, one should clearly indicate that the opinion is just that, an opinion, and not a fact.

In actuality, some 274 persons have been sentenced to death in Illinois since 1977, by a judge or jury, with 247 of those persons having gone through at least one appeal.28  Twenty-one of the defendants entered pleas of guilty to the crimes for which they were sentenced to death.29  The Illinois Supreme Court has written and issued 394 decisions in death penalty cases involving the 274 persons sentenced to death since Illinois re-instituted the death penalty in 1977.30  The latter number does not include cases wherein the death penalty was imposed initially and then vacated by the trial court in some post-trial proceeding.31  Not only can this occur, but in one of the "exonerated " thirteen cases the defendant Gary Gauger was in fact never on death row because the trial court vacated his death sentence prior to any appeal. Thus, his case is not one of the 394 cases.

Of the 394 death penalty appellate opinions, only thirteen individuals were subsequently discharged either due to an acquittal at a retrial or a dismissal of the charges.32  The "innocent" and "wrongfully" convicted listed in the press, thus, constitute the total number of persons sentenced to death and later discharged. The reasons for the later "exonerations" are as different as each of the ten individual prosecutions that gave rise to the thirteen "exonerations." The following is a brief outline of how each case resulted in exoneration:

Rolando Cruz - convicted and sentenced to death by a jury in 1985 for the kidnapping, rape and murder of a ten-year-old little girl. The conviction was reversed for the trial court’s failure to sever the case from the co-defendants. He was convicted and sentenced to death a second time in 1990, despite the emergence of a third party that claimed sole responsibility for the murder and the introduction of said evidence at trial. After initially being affirmed by the Supreme Court based upon what the Court said was "overwhelming" evidence of guilt.33  The case was ultimately reversed; the reversal was based upon the trial court’s failure to allow evidence of details of unrelated crimes committed by the third party claiming sole responsibility.34  Cruz’s third trial in 1995 was a bench trial and he was found not guilty.35  The court found that the State failed to present evidence sufficient to prove the case beyond a reasonable doubt.36  The case has been referred to as a "DNA exoneration," which is not accurate in light of the multiple offender theory that was offered in each trial.37  Further, it is often reported that in the 1995 trial a police officer recanted testimony he gave in the earlier trials. This is not correct. That officer never testified in any earlier trial concerning Cruz. The officer was never called by the State. His trial testimony changed from his testimony in a 1995 pre-trial hearing concerning his recollection of a conversation with a detective about statements Cruz made to that detective. There was no concession of innocence by the State and his civil case is still pending.38 

Alejandro Hernandez - convicted and sentenced to death by a jury in 1985 (Cruz co-defendant, first conviction overturned on the same grounds). His second trial ended with a hung jury in 1990. A third jury convicted him for a second time in 1991 and he was sentenced to 80 years in prison.39  His conviction was reversed by the appellate court due to the trial court’s failure to properly answer a jury question raised during deliberations. The charges were dismissed by the State in 1996 following the Cruz’s acquittal. The action was predicated upon the statement that the State would not proceed to trial with the evidence available at that time. There was no concession of innocence by the State and his civil case is pending.40 

Joseph Burrows - convicted in 1989 for shooting an 89-year-old man to death based largely upon the testimony of two witnesses. In 1994, he was granted a new trial after the co-defendant/witness recanted her testimony and claimed she alone committed the murder. The case was dismissed because both witnesses recanted. The defendant’s innocence depends on whether the initial trial testimony was perjury or the later recantation was perjury. Faced with such evidence, the decision to prosecute was warranted. Moreover, that decision would be wrongful only if a self-admitted killer and perjurer was to be believed. There was no concession of innocence by the state and defendant’s civil case was settled.41 

Perry Cobb and Darby Williams - between 1979 and 1987 the two defendants were tried five times for an armed robbery/double murder. Ultimately, a judge acquitted them both at a bench trial. Both defendants asserted their innocence, and the police and prosecutors maintained that the two defendants were guilty. The case relied heavily on the testimony of a woman who allegedly drove the get away car. Though the defendants were found in possession of property belonging to one of the victims, they claimed the property was purchased from another man who was the actual perpetrator.42 

Gary Gauger- under a sentence of death until the judge reduced the sentence to life in prison. He was convicted of murdering his parents in 1993 based on circumstantial evidence and his confession to police. In 1996, the appeals court suppressed his confession because police without probable cause took him into custody. The State failed to convince the Supreme Court to review the case, and, accordingly, dismissed the case. Subsequent to the dismissal, a separate Federal investigation identified two persons who Federal authorities have charged with the murders. While the evidence certainly suggests the other two were the actual killers, no concession has been made that Gauger was not involved in his parent’s murders. Gauger’s civil case is pending trial.43 

Verneal Jimerson and Dennis Williams- two of the so-called Ford Heights Four, prosecuted for the 1978 abduction/murder of a young couple. There were allegations of recanting witnesses, cheating prosecutors and lying police officers. The Tribune identifies these cases as DNA exonerations, although the case always involved an allegation of multiple offenders, which makes DNA far less probative of guilt than in a crime with a single perpetrator. By virtue of a substantial civil settlement and various statements at the time of their release, it would be appropriate to say that the popular consensus is they were innocent, although many close to the case still maintain that they were two of the people involved in the crime.44 

Steven Smith - tried three times since 1986 for the murder of a man in a Chicago bar. In 1999, the Illinois Supreme Court outright reversed the conviction based upon their evaluation of the strength of the evidence. As a result the defendant was released. Such a ruling is unusual, and, in fact it is the only death penalty case resolved in such a fashion. Generally, a court will reverse and remand the case for a new trial and order that the basis for reversal be excluded from the new trial. Rarely will the Court review and evaluate the quality of the evidence and decide that the evidence was not sufficient to convict. In its opinion the Supreme Court specifically stated that the decision was not a finding of innocence.45 

Ronald Jones - convicted in 1989 and sentenced to death. The evidence consisted of testimony placing him with the victim just before she was allegedly raped and stabbed to death. Further, evidence was admitted in which a rape victim identified the defendant as the person who raped her in a similar fashion, at about the same location, close in time to the murder and similarly using a knife. He was released in 1999 based upon DNA evidence that excluded him as the source of the semen recovered from the victims’ body. In his statement, that he alleged was beaten from him, the defendant claimed the victim was a prostitute. If the person who killed the victim left the recovered DNA sample, this evidence does establish his innocence.46 

Carl Lawson - originally charged in 1990 for stabbing a little boy to death. He was tried three times before a jury found him not guilty in 1996. Although witness testimony was quite confusing, the defendant was placed with the victim just prior to his murder. He had a motive based upon his estranged relationship with the boy’s mother with whom he lived. Additional inculpatory evidence included bloody shoe prints matching the defendant’s shoes and the defendant’s fingerprints discovered in an abandoned building in close proximity to where the boy’s body was found. The defendant’s initial conviction was overturned because his attorney had a conflict of interest.47 

Anthony Porter – convicted of shooting two people in a park, but released after someone else confessed to the crime. He was on death row, and at one point was within days of execution. He was "exonerated" through the efforts of journalism students who uncovered evidence supporting his claim of actual innocence. Despite having been charged with committing an armed robbery on the same night and in the same park where the two victims were murdered, the new evidence established that Porter did not shoot the victims. Death penalty opponents assert that the unique circumstances of Porter’s case are typical of those concerning the "exonerated" thirteen. That all parties have conceded Porter’s innocence, however, is far from usual.48 

Steve Manning-currently serving a life sentence on another unrelated murder conviction. He is a former police officer turned contract killer, and allegedly connected to multiple murders. He was "exonerated" of a murder charge because he was granted a new trial and the State chose not to proceed; a decision based largely on the weakness of the case. The prosecution relied upon the testimony of a jailhouse informant who the Tribune featured as the quintessential unreliable snitch. Whether the use of this unreliable witness means that Manning was innocent remains an unanswered question.49 

Thirteen defendants spanning twenty-three years and taken from ten very different cases have surfaced as the foundation for the current death penalty debate in Illinois. One or more is likely innocent. Whether they should have been prosecuted in the first instance or whether there was lying and cheating connected to their initial conviction remains largely unanswered in the majority of these cases. Yet, these thirteen defendants have been described as "innocent" men, falsely accused, and "wrongfully" prosecuted. An honest assessment of these cases, however, suggests that none of the defendants fit neatly into any of the three categories.

Among the 247 men and women sentenced to death in Illinois in the last twenty-three years, these thirteen cases have been used to condemn an entire system. To appropriately evaluate our system of justice, however, all other death penalty cases equally should be examined in the interest of justice and fairness to the victims’ families. No action taken thus far does anything to right any wrong in the thirteen cases. The moratorium announced by the Governor only effects offenders currently sentenced to death, and of those individuals, most do not raise any credible issues of actual innocence and many pleaded guilty to the crimes for which they were sentenced.

Certainly the case of Anthony Porter and arguably some of the other thirteen raise some very serious concerns. And while the debate is not unwarranted, the true number of "innocent" individuals is not the real

issue. The true issue is whether the system can be improved to ensure that the ultimate nightmare of an innocent individual being executed does not occur. To do so, we should first put the debate and the issues in their proper perspective, and not take action based on sensationalized one-sided newspaper stories.

An accurate assessment of the capital punishment issue in Illinois requires an examination of objective factors found in each of the 394 reported decisions involving the death penalty. Such factors, provided below, include the common issues that arise on appeal and the ultimate basis for reversal of a conviction. A review of all 394 decisions reveals the following:

Number of Death Sentences 274

Number of Death Sentences Reviewed on Appeal 247

Number of Opinions Issued by the Supreme Court 394

Manner of Disposition50  Jury Bench Plea

248 70 30

Direct Appeal

Affirmed Guilt/Death 196

Affirmed Guilt/ rev’d Death 63

Reversed/Remanded Guilt/Death 50

Reversed Death/Guilt 1



Post Conviction Petitions (PCP)

Affirmed Denial of PCP 56

Reverse Denial of PCP 18

Remand PCP 10





Issues on Appeal and Grounds for Reversal51 


Issue on Appeal # of times raised # of times grounds of reversal


Improper Admission of 192 28

Evidence by Court


Ineffective Assistance of 190 25



Improper Argument of 160 24



Improper instructions 90 7


Batson Violation in Jury 51 5



Victim impact evidence 35 8


Brady Violation53  21 3


Change in the Law 9 2


Fitness of Defendant 8 4


604D Violation54  6 4


Other misc. grounds55  265 68

A review of these objective factors does not support some of the complaints rendered by death penalty critics. The single most common argument raised on appeal involves trial court rulings on the admissibility of evidence. In fairness to criminal trial judges, such arguments are common in all areas of appellate law. In capital cases, the Supreme Court has not only been willing to find error where it would not be so inclined in non-death penalty cases, but regarding the admissibility of evidence the Court has also changed the rules along the way. The Court has, from time to time, simply altered the way it views certain types of evidence making it difficult to criticize the trial judge. Nevertheless, the quality of the trial judges must be an area of review in any comprehensive examination of the death penalty in Illinois. Judges are often inexperienced in handling death penalty cases, and, even worse, some are not experienced in criminal law at all before hearing a death penalty case. The Court must take some responsibility for having the most serious type case handled by a judge who has no training or experience in this very complex area of the law.

The second most often raised issue on appeal is the effectiveness of defense counsel. There is no dispute that this is a serious issue and grounds for concern for everyone, including prosecutors who are later called upon to defend the defense on appeal. Any prosecutor who thinks he has an advantage in opposing an inexperienced, ineffective and under funded defense counsel is terribly short sighted and lacks good judgment. Fortunately, an overwhelming majority of prosecutors are not so foolish. The Illinois State’s Attorneys Association has endorsed a great many reforms, and among them is the dramatic increase in funding for capital defense. Addressing one of the single most significant problems in capital litigation only makes sense.

The next most commonly raised issue on appeal concerns prosecutorial abuses in arguing capital cases. If you become familiar with this area of law you quickly learn that "death is different," which means that the rules may not necessarily be different, but the way they are interpreted and applied by courts is vastly different in death cases. Appropriate action in some other type of its interpretation of the rules in capital cases. Thus, judges and prosecutors must be keenly aware of all the most current law in the area or run the risk of reversal.

In fairness, it should be noted that defense attorneys have done some disreputable things in defending capital cases, but it seldom, if ever, gets discussed in court opinions, for a defense attorney’s error will only be reviewed if it adversely effects the defendant. The ethical lapses are rarely, if ever, documented in any court opinions because such conduct is irrelevant to the defendant’s right to a fair trial. Thus, the occurrence of defense attorney misconduct is not documented in appellate decisions. Unfortunately, the conduct of defense counsel often gives rise to heated arguments or retaliatory comment by the prosecutor. Many times the prosecutor loses sight of the true objective, and responds inappropriately. This is not to suggest that such behavior should be forgiven or excused. A slippery slope can, however, develop in an atmosphere with so much at stake. This is when an experienced judge can make a big difference.

The issue of improper prosecutorial argument generally relates to overzealous argument. Such conduct often is the subject of Supreme Court opinions. Prosecutors need to do a better job of training themselves and their assistants. A prosecutor must know where the line is drawn, and guard against letting emotional zeal propel an argument. Know where the line is may be difficult, however, because the Court has been inconsistent or changed it’s interpretations of the law. Many arguments that, to the average layperson or even some less experienced attorneys seem entirely logical and appropriate are, nevertheless, off limits. Some arguments, for example, are simply too compelling, because they step over the line into emotional appeals to the jury. Thus, there exists a fine distinction between proper and improper argument that must be acknowledged by sagacious prosecutors.

By contrast, among the least often raised issues is the Brady56  violation. A Brady violation is the withholding of favorable evidence from the accused by police or prosecutors.57  If you read the newspapers or listen to death penalty abolitionists in Illinois, you would think this is among the most common problems in capital litigation. Yet, it is among the least commonly raised and has only been the basis for three reversals. Certainly, this type of violation is very serious, however, it is rare for a reason. The overwhelming majority of all prosecutors are decent, honest people trying to do the right thing for the right reasons. Yet, in spite of the prosecutor’s best efforts, it is not difficult for exculpatory evidence not to be disclosed. This usually involves situations where police or a law enforcement organization has a piece of information required to be disclosed but the prosecutor, whose job it is to see that it gets done, does not know it exists. In cases where a Brady violation occurs the prosecution and the victims’ family generally pay the price by affording the defendant an avoidable ground for a new trial.

There are other issues raised in this debate that are legitimate and warrant grave concerns. The suggestion that persons were forced to confess by means of physical coercion by a certain Chicago Police officer is terribly troubling. If it is true it should be addressed in an appropriate fashion. However, should we dispense with an otherwise appropriate sentence in some other, unrelated case because of this police officer and his allegedly illegal actions? If the answer is yes, then we must understand the narrow reasoning behind what we are doing. However, grievous error in one case does not render the decisions in all other capital cases unreliable.

The use of jailhouse informants has also been a topic of criticism by death penalty abolitionists. It would be unwise to label every witness who is a convicted criminal or incarcerated at the time of his or her testimony as inherently unreliable. The facts of each case are different. The jury or judge, as the trier of fact, must be allowed to do the job they have historically done—make findings of fact. It is a human endeavor and will be limited by human capabilities. Our Anglo-American system of justice requires judges and juries to determine the trustworthiness of witnesses and not generic laws flatly applied denying relevant evidence from seeing the light of the courtroom.

Almost half of the 13 "exonerated" defendants’ cases directly involved a significant witness recanting or changing their testimony. How do we keep this from ever happening? Is the solution to throw out our system of justice? No. The human error inherent in our system precludes a satisfactory solution to the problem; therefore we must accept that remote possibility in every case. If the imperfections in our justice system, that have always existed, provide the basis for abandoning the death penalty in the eyes of our society, then so be it. But a societal decision of this gravity must be made rationally and with a foundation in truth. The decision cannot be made based on emotional hysteria and propagandist half-truths. I am unwilling to accept the proposition that our system of truth seeking cannot actually be trusted to find the truth.

Ultimately, the decision must come from an honest public debate of the issues surrounding capital punishment. It should not come from over-generalized and disingenuous arguments premised on misleading statements or emotional appeals. If our system of justice is truly too unreliable to be trusted with the death penalty then let that public policy decision be made based upon an examination of all the relevant facts and issues. If the citizens of our state lose faith in the system and stop supporting the death penalty our laws will reflect that decision. I hope that judgment is the product of an honest examination of all the issues.

 1 Ken Armstrong and Maurice Possley, The Verdict: Dishonor, Chi. Trib., Jan. 10, 1999, A1.

 2 According to a report from the National District Attorneys Association, of the 381 cases cited, 221 (57.5%) were examined in their report. They found that of the cases examined only 8.5% had documented prosecutorial misconduct, 24% of the cases showed possible misconduct by the prosecutor; while in 37% of the cases contained no credible showing of prosecutor misconduct and in the remaining 32.5% it could not be determined from the available information. The NDAA review also found that of the 221 cases they have examined 26% resulted in either an acquittal or a dismissal, while 56 % of the defendants were later convicted of the same or a lesser offense. Additionally, 27% of the cases reviewed were unpublished opinions, thus there was no way to identify the source of the allegations. Finally, that in spite of the claim that the 381 cases only dated back to 1963, they in fact dated as far back as 1931.

 3 See generally, Ken Armstrong and Maurice Possley, How Prosecutors Sacrifice Justice to Win, (five part series), Chi. Trib., Jan. 10-14, A1.

 4 Ken Armstrong and Steve Mills, Death Row Justice Derailed Bias, Errors and Incompetence in Capital Cases Have Turned Illinois’ Harshest Punishment Into its Least Credible, Chi. Trib., Nov. 14, 1999, A1.

 5 Id.

 6 Id.

 7 Id.

 8 Id. at A16.

 9 Webster’s Dictionary

 10 185 Ill.2d 179, 705 N.E.2d 824 (1999).

 11 Bull, 705 N.E.2d at 847.

 12 After the Cruz acquittal a special prosecutor was appointed to investigate certain testimony presented in Cruz’s trial. The special prosecutor then indicted four police officers and three former prosecutors for conspiring to present perjured testimony and for withholding certain favorable information. Ultimately, all seven were acquitted. It was largely reported that the jurors who heard the special prosecutors case not only rejected the claim of wrong doing on the part of the police and prosecutors, but believed from the evidence they heard that Cruz was in fact involved as one of the perpetrators of the crime.

 13 See People v. Smith, 185 Ill.2d 532, 539, 708 N.E.2d 365, 371 (1999).

 14 Bull, 705 N.E.2d at 841.

 15 Id.

 16 Id. at 842.

 17 Id.

 18 People v. Burrows, 172 Ill.2d 169, 665 N.E.2d 1319 (1996).

 19 People v. Gauger, 277 Ill.App.3d 1114, 698 N.E.2d 724 (2d Dist. 1996); People v. Gauger, No. 2-94-1199 (unpublished opin. under S. Ct. R. 23).

 20 Id. at 843.

 21 185 Ill.2d 532, 779, 708 N.E.2d 365 (1999); see also People v. Smith, 141 Ill.2d 40, 585 N.E.2d. 900 (1990).

 22 Smith, 708 N.E.2d at 366.

 23 Id. at 371 (emphasis added).

 24 Bull, 705 N.E.2d at 848.

 25 Id.

 26 Id.

 27 Id. at 845.

 28 The staff of the DuPage County State’s Attorney’s Office read, reviewed and outlined every Illinois Supreme Court opinion issued since the reinstatement of the death penalty in Illinois. This research revealed that 394 opinions have been issued, addressing death sentences in 247 individual cases. The 394 opinions include all death penalty opinions issued by the Court through February 2000 (hereinafter "DuPage County State’s Attorney’s Office Research Project").

 29 DuPage County State’s Attorney’s Office Research Project.

 30 DuPage County State’s Attorney’s Office Research Project.

 31 DuPage County State’s Attorney’s Office Research Project.

 32 DuPage County State’s Attorney’s Office Research Project.

 33 People v. Cruz, 643 N.E.2d 636, 664 (Ill. 1994).

 34 Id.

 35 See Trial Court Transcript of the Third Cruz Trial.

 36 Id.

 37 DNA testing prior to the third Cruz trial in 1995 trial did exclude Cruz as a source of the seminal material found in the victim. See also Trial Court Transcript of the Third Cruz Trial.

 38 See generally Trial Court Transcript of the Third Cruz Trial; see also People v. Cruz, 162 Ill.2d 314, 643 N.E.2d 636 (1994).

 39 At Hernandez’ third trial the defense surprisingly chose not to present any defense evidence, including the DNA evidence and the claim of sole responsibility in the crime by a third party).

 40 See generally People v. Hernandez, 121 Ill.2d 293, 521 N.E.2d 25 (1983); see also Trial Court Transcripts of the Hernandez Trials.

 41 See generally People v. Burrows, 172 Ill.2d 169, 665 N.E.2d 1319 (1996).

 42 See generally People v. Cobb, 37 Ill.2d 465, 455 N.E.2d 31 (1983); see also Trial Court Transcripts of the Cobb Williams Trials.

 43 See generally People v. Gauger, 277 Ill.App.3d 1114, 698 N.E.2d 724 (2d Dist. 1996); People v. Gauger, No. 2-94-1199 (unpublished opin. under S. Ct. R. 23).

 44 See generally People v. Jimerson, 166 Ill.2d 211, 552 N.E.2d 278 (1996) and People v. Williams, 147 Ill.2d 173, 588 N.E.2d 983 (1992).

 45 See generally People v. Smith, 185 Ill.2d 532, 708 N.E.2d 365 (1999) and People v. Smith, 141 Ill.2d 40, 565 N.E.2d 900 (1991).

 46 See generally People v. Jones, 156 Ill.2d 225, 620 N.E.2d 325 (1993).

 47 See generally People v. Lawson, 163 Ill.2d 187, 664 N.E.2d 1172 (1994).

 48 See generally Porter v. Gramley, 112 F.3d 1308 (7th Cir. 1997).

 49 See generally People v. Manning, 182 Ill.2d 193, 695 N.E.2d 423 (1998).

 50 The manner of disposition includes all the 394 reviewed cases. This identifies how many pleas, bench trials and jury trials have been reviewed in all 394 reported decisions. The number of reported dispositions exceed the number of actual defendants and number of death sentences because the combinations of bench and jury may vary from case to case, with a defendant not only having multiple proceedings, but having waived jury at either the guilt phase or the sentencing phase.

 51 The statistics listed in this analysis identifies how many times in the 394 reported decisions the various issues were raised and how many times that issue gave rise to a reversal. Those numbers exceed the actual number of cases because there can be multiple issues raised in a case and multiple grounds for reversal. Additionally, a given defendant’s case may be heard multiple times by the court and may raise the same issues in each opinion or raise new issues.

 52 Batson v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712 (1986).

 53 Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194 (1963).

 54 Illinois Supreme Court Rule 604D requires that before proceeding to a motion to vacate a plea or sentence the defense attorney must file a certificate with the trial court setting forth that he has complied with the requirements of the rule. A failure to do so requires reversal.

 55 This category includes all the unique arguments that can and are made that do not fall within any generally discernable category. These situations include, various jurisdictional issues, severance, psychotropic drugs, improper weighing of aggravation or mitigation, failure to "life qualify" the jury, vacating the basis for a felony-murder, improper wording of an instruction, juror bias, and other errors in the proceedings.

 56 373 U.S. 83, 83 S. Ct. 1194 (1963).

 57 See generally id.

John J. Kinsella is First Assistant State’s Attorney for DuPage County. He received his Undergraduate Degree in 1978 from Western Illinois University and his Law Degree in 1981, from Northern Illinois University.

DCBA Brief