Last-Minute Exonerations Fuel Death-Penalty Debate

The condemned man sat shackled in the prison visiting room, listening to his lawyers talk about a way out--one way left to prove his innocence.

Ronald Jones, convicted of the rape and murder of a young mother, insisted he hadn’t done it. Now, after four years on death row, an improved DNA test might finally clear him.

Dick Cunningham, one of his lawyers, cautioned there would be no turning back. “This is the whole ballgame,” he advised Jones. “If there’s any chance you did this, it’s going to prove it beyond a shadow of a doubt.”

Jones was adamant.

“I want the testing done,” he said. “It’s not me.”

*

Ronald Jones was hardly the first death row inmate to protest his innocence. But what is striking, even shocking, in Illinois is how frequently such claims have turned out to be true.

In the last dozen years, while 12 men have been executed, 12 others once condemned to die have been exonerated--three this year. Some were cleared with new trials. Some had their convictions overturned in appeals. Some had DNA prove their innocence. And some, incredibly enough, had student journalists help set them free.

This statistic may be more dramatic than those in other states, but it mirrors a national trend. Since 1973, 81 men and one woman sentenced to death have been freed, nearly half of them since 1990, according to Richard Dieter, director of the Death Penalty Information Center in Washington. He believes more investigations by lawyers and journalists and increased use of DNA testing are partly responsible.

The wrongful convictions are shifting the national debate over the death penalty. Traditionally, the argument has been over its morality. Now the question is how often we condemn the innocent.

In July, Cook County State’s Attorney Richard Devine asked the state Supreme Court to delay the executions of three inmates who claim police coerced them into confessing.

This year, Dieter says, lawmakers in at least 10 states proposed imposing a moratorium on executions or abolishing them. “Illinois made temporarily halting the death penalty a legitimate issue,” he says. “The momentum has picked up.”

Twelve wrongful convictions do not mean Illinois, with 158 death row inmates, has a bigger problem than other states, says Larry Marshall, a Northwestern University law professor who has been involved in 10 of the cases. But, he says, they do mean “we’re doing a better job of detecting them.”

Even so, he says, the 12 could easily have gone to the death chamber. Their salvation depended on coincidence, good timing and good fortune.

Consider Gary Gauger, freed because his pleas for help happened to reach the right desk.

Or Darby Tillis and Perry Cobb, released because a stranger happened to read about their case in a legal newspaper.

Or Ronald Jones, saved from lethal injection because old DNA evidence, which often gets lost or destroyed, happened to be sitting in brown envelopes in a file drawer for eight years.

“You can call it luck,” Marshall says. “You can call it the hand of God. You can call it fortuity, serendipity. What it’s not, is the system working.”

*

The facts were stacked against Ronald Jones.

He was a homeless, alcoholic panhandler. His IQ was around 80. Worse, he had confessed to the 1985 murder of Debra Smith, though he later recanted, saying he made up a story so police would stop beating him.

Dick Cunningham and his co-counsel, Gary Prichard, studied the stacks of legal records for any mistakes, any issue that hadn’t been rejected in earlier appeals.

There wasn’t much. A bid to throw out the confession had failed. The detectives who interrogated Jones had no history of abuse.

But there was science.

A DNA test Jones took in 1989 had been inconclusive, but more precise methods of testing were now available.

Prosecutors opposed the test, however, saying it essentially would be retrying the case. The trial judge agreed.

“What issue could possibly be resolved by DNA testing?” asked Cook County Circuit Judge John Morrissey.

Jones, after all, had signed a statement saying he had offered Smith $10 to have sex, they had intercourse in an abandoned motel, and when he refused to pay her, she pulled a knife. They struggled and he stabbed her. Sure, he recanted at the trial, but why should anyone believe him now?

Jones’ lawyers insisted the confession didn’t fit the crime. There was no evidence that Smith, a 28-year-old mother of three, was a prostitute. Jones had a burglary and robbery record, but no history of soliciting prostitutes.

A DNA test, the defense argued, could prove conclusively whether the semen recovered from the victim belonged to Jones.

“Save arguments like that for the press,” the judge said. “They love it. I don’t.”

Finally, in 1997, after more than two years of arguments, the Illinois Supreme Court granted permission for DNA testing. Ronald Jones’ fate rested in a few envelopes stashed in a file cabinet in the court clerk’s office. The evidence was shipped to a forensic expert in California, who first made sure there was enough material to analyze. There was.

Three weeks later, Cunningham had his answer. He phoned Jones.

“I said, ‘Are you sitting down?’ ” he recalls.

The DNA testing had excluded Jones.

His life was spared, but his freedom proved elusive.

A computer check found that years ago Jones, now 50, had walked away from a work release camp in Tennessee, where he had been serving five years for robbery.

Soon he was behind bars again, this time in Tennessee.

Cunningham’s work goes on. He has nine more clients on death row.

*

In Illinois, a condemned man spends an average of 13 years awaiting execution. That time helped save 12 men. Investigators unearthed new evidence. Witnesses changed their stories. DNA testing became more sophisticated.

There has been no DNA case in Illinois more shocking than the Ford Heights Four, in which two men were sentenced to death and two others to virtual life in prison for a gang rape and double murder.

They spent up to 18 years behind bars before DNA tests exonerated them in 1996. At that time, three other men confessed to the crime. The Ford Heights Four recently won a $36-million settlement from the county.

None of this would have happened without David Protess, a Northwestern journalism professor, and some of his students, whose investigation led the state’s chief witness to change his story.

In the wake of the case, Illinois passed a law giving death row inmates a right to DNA testing in cases where identity is an issue and test results could potentially prove innocence. Its sponsor was Ed Petka, a state senator and former prosecutor who put seven men on death row.

“It’s an idea whose time has come,” he says. “I can’t see anyone who should be objecting.”

But only New York and Illinois have such laws. In 33 states, new evidence can’t be introduced in a criminal case more than six months after the final judgment in state court, says Barry Scheck, co-director of the Innocence Project at the Cardozo School of Law in New York.

DNA testing has exonerated 64 inmates in the United States and Canada, including nine who were on death row in this country, Scheck says. In cases the Innocence Project handled, more than two-thirds tested had results in their favor.

But in 70% of the cases in which inmates ask for help, Scheck says, evidence that would help determine innocence is claimed to be lost or destroyed, though sometimes it turns up later.

Even when there is evidence, the wrongly convicted need something else: a champion. That’s been true in all the Illinois cases.

“These people are alive . . . for the most part because they’ve been lucky enough to find somebody in their family or somebody in their community who’s willing to fight for them,” Marshall says.

That’s what saved Gary Gauger.

*

Gary Gauger’s own words helped put him on death row.

His twin sister’s persistence helped set him free.

Gauger, now 47, was convicted of the 1993 murders of his parents, Morris and Ruth, on their farm in Richmond, Ill. He says he was sleeping when their throats were slashed, 26 feet from where he lay.

There was no sign of robbery; dozens of guns and thousands of dollars were left in the house. There was no forced entry. And there was no eyewitness or physical evidence to tie Gauger to the crime, though he says police told him they had a weapon and bloody fingerprints.

“I asked them if they could lie,” he recalls. “They said, no, they would lose their jobs. And I’m believing them. . . . I was naive. My parents had been killed. I wanted to help.”

Gauger was questioned nonstop for 18 hours without a lawyer; the interrogation was not recorded.

McHenry County sheriff’s police were suspicious of the ponytailed organic farmer who appeared strangely mellow for a grief-stricken son, tending to his tomato plants as investigators scoured the scene.

But what doomed Gauger were his statements.

He says late in the interrogation police asked him to hypothetically describe how he might have slashed his parents’ throats. And he did.

Police said Gauger blurted out that he had killed his parents.

Gauger says he was so exhausted he began thinking he might have done so in a blackout, even saying it at one point, but then repeatedly insisting he didn’t believe he had committed the crime.

“I thought as soon as somebody impartial looks at this, they’ll see what a sham it is,” he now says. He was wrong.

Before sentencing, his twin, Ginger Gauger-Blossom, defiantly told the court the murderer was still at large. She also spoke of her regret that her parents’ desire for her brother to take over the farm someday would never be realized.

“Prosecution and a misguided attempt at justice has destroyed their dream,” she said. “All of my dreams are gone also, with the exception of one: that the truth comes out and Gary is released.”

Determined to make that happen, she mailed scores of letters to TV magazine shows, begging them to investigate. She urged her brother to do the same.

“I would scream at him,” she recalls. “I’d say, ‘Gary, you can’t give up!’ ”

Their pleas were finally answered when Larry Marshall took the case and won Gauger’s freedom in 1996. Gauger spent 3 1/2 years in prison, including nine months on death row.

Last fall there was a startling epilogue. A member of the Outlaws motorcycle gang described in court how he and an accomplice killed the couple in a robbery, making off with $15 to buy breakfast. He also testified that a wound on Mrs. Gauger’s head linked to her son’s knife at trial was, in fact, a mark from the butt of one of the killers’ guns.

Gauger is planning a civil suit, but Jim Sotos, a lawyer hired to represent the police, says there was no police misconduct. As for Gauger, he says: “I don’t think he was treated unfairly at all.”

Hollywood likes to portray the wronged man as a Jimmy Stewart-like good guy caught in a Hitchcock-like web of coincidence.

In real life, the accused usually isn’t so saintly.

About half the defendants in the 12 Illinois death row cases had already been in trouble with the law, Marshall says. In most wrongful-conviction cases, he added, the accused are members of minority groups or have personality quirks that arouse suspicion.

Another recurring problem, he says, is that the defendants are often represented by lawyers who are overworked, over their heads or underfunded.

Marshall lists several warning signs common to wrongful convictions:

* Confessions in which the suspect parrots police assertions and provides no details of the crime.

* Reliance on testimony of jailhouse snitches, who are notoriously unreliable.

* Single witnesses, who are frequently believed by juries but are frequently wrong.

One inmate released from death row in February had been convicted largely on the basis of an eyewitness who was wrong about many facts of the case.

But ferreting out the truth can be difficult.

Consider Anthony Porter, who once was two days away from execution during his 17 years in prison for a double murder.

Marshall helped craft an appeal last year based on Porter’s IQ of 51, not on his persistent claims of innocence.

Then, last winter, Protess, the Northwestern journalism professor, came to the rescue again. His students and an investigator gathered evidence that showed Porter had been wrongly convicted. As a result of their work, key witnesses recanted their testimony and a Milwaukee man videotaped a confession to the murders after his estranged wife identified him as the killer.

Porter is now a free man but, at 44, he has no job or money. He lives with his mother.

*

The fates of Darby Tillis and Perry Cobb turned on two people.

The first was the government’s key witness, who claimed she drove the getaway car the night they robbed and murdered two people at a hot dog stand in 1977. Her testimony sent them to death row.

The second was a stranger to Tillis and Cobb, a young lawyer who happened to read about their case and came forward with startling news. His testimony cleared them.

Tillis and Cobb were tried five times. Three trials ended with hung juries and a fourth brought the death penalty, which was thrown out on appeal. Finally, after spending nine years behind bars, about half of them on death row, the men were acquitted in their only non-jury trial.

Their case, perhaps more than any, illustrates how a single stroke of luck can free condemned men.

Prosecutors built their case around two witnesses--the woman who said she drove the getaway car and a bartender who was 75 feet from the place where the murders occurred. At the first trial, he said he saw two men for five seconds and couldn’t identify them. At the third trial, he made a positive identification.

The turning point came when Michael Falconer read a story in the Chicago Lawyer about the case. Falconer recognized the name of the government’s star witness; he’d worked with her years earlier at a factory job.

He remembered she once told him she and her boyfriend--the same man she testified she had dropped off before the crime was committed--had planned to rob a restaurant but that something went wrong and someone was shot.

By the time he testified, Falconer was a Lake County prosecutor. A prosecutor testifying for the defense in a high-profile murder case was not a popular move. But he did.

At the final trial in 1987, Judge Thomas Hett said he believed the state’s witness was a liar and Falconer was telling the truth. But Hett’s acquittal fell short of proclaiming their innocence.

“There is evidence pointing to the defendants’ guilt,” he said, “but there is just as much evidence discrediting a large part of such incriminating evidence. As much as I do not want to say these words, I must. The defendants are not guilty of all charges.”

The murders remain unsolved.

But 22 years later, Tillis and Cobb still are trying to clear their names. In July, they made an appeal to a state board, seeking a pardon from the governor.

“I feel like I’ve been branded for life,” Tillis, 55, told the board. “I feel that the system has something they owe me.”

At 57, Cobb says he has been unable to get his life back on track. “All these days I have been off death row,” he says, “death row has not been off me.”

*

No new execution dates have been set in Illinois, but the clock is running.

Each week, letters from death row, about half from Illinois, arrive in Larry Marshall’s office. He says he turns down 99% of the pleas for help because he doesn’t have enough resources.

Marshall is confident more death row inmates will walk free, but when it comes to deciding which case to investigate, he is less certain.

“All we hope for,” he says, “is God’s help to guide our hand to take the right one.”