Swans Commentary » swans.com February 9, 2009  



To Kill Or Not


by Peter Byrne


Book Reviews



Turow, Scott: Ultimate Punishment, A Lawyer's Reflections On Dealing With The Death Penalty, Farrar, Strauss and Giroux, NYC 2003, ISBN 0-330 42688 5 HB, 164 pages. Reversible Errors, Farrar, Strauss and Giroux, NYC 2002, ISBN 0-374-28160-2 HB, 433 pages.


"The case never was about the victim, or the defendant, or even what happened. Not really. For the cop and the lawyer and the judge you could never keep it from being about you."
Reversible Errors, (Page 344).


(Swans - February 9, 2009)   In the fall of 2001 Scott Turow made up his mind. He could no longer support capital punishment. The long road to his decision had never confined him to libraries or the groves of academe. A public prosecutor in Chicago and then a defending lawyer, he knew violent life and death on a big city level. His writing, whether fiction or non-fiction, always started with people. His essay Ultimate Punishment recounts the anxious itinerary that led him to speak out against the death sentence.

Turow is also a novelist who has earned a place among the best authors of legal thrillers. One of these, Reversible Errors, replays the drama of the death penalty in terms of the real, error-prone actors and the faulty institutions that regulate their work. The two books are best considered together as one thoroughly detailed enquiry whose point of departure isn't abstract principle but experience as concrete as a lethal injection.

And both books deserve our attention in the wake of a noisy presidential campaign that relegated capital punishment to the category of subjects too serious to risk talking about. In Slate, December 28, 2007, Niko Karvounis listed a number of campaign firsts before concluding:

There's another first that's gone largely unnoticed: This is the first election in 20 years in which the death penalty isn't a go-to issue for conservatives. For a generation, Republican candidates wielded their fondness for executions like a weapon, and Democrats either summoned their own righteous bloodlust and embraced capital punishment, or avoided the subject altogether. But the Bush years have witnessed a steady shift in how Americans perceive the death penalty, and this time around, it's the last thing Republicans want to talk about. And yet, faced with an opportunity to seize the high ground in a debate they've been losing for decades, the Democrats can't summon the nerve. So, 2008 could go down in history as the year the Democrats had the chance to confront the death penalty -- and didn't.

Literary men who oppose the death penalty generally agree with what George Orwell wrote in his essay The Hanging: "I saw the mystery, the unspeakable wrongness, of cutting a life short when it is in full tide." Victor Hugo, Feodor Dostoievski, Arthur Koestler, and Albert Camus all dwell on the inviolability of life, the mental torture involved in a programmed putting to death and the essential barbarity behind any such undertaking. Turow, a lawyer to his fingertips, leaves aside these sentiments. No more does he debate the classic arguments of principle. He passes over Cesare Beccaria's utilitarian objection that capital punishment is not a greater deterrent than life in prison. He's unfazed by Immanuel Kant's reasoning that in the case of murder, nothing but capital punishment can make the culprit realize the significance of the wrong done. And Turow is probably unconcerned that in fact his own position echoes Kant's great commonplace that only the guilty may be punished -- that a system of punishment that does not protect the innocent is immoral. For it's the prospect of error that motivated Turow's decision.

Unlike these writers and thinkers, Turow doesn't dwell on the instant when life is snuffed out, nor does he build syllogisms on the philosophic heights. He starts at the beginning with the presumed criminal's arrest and follows through with a thorough study of the legal process. It's a hands-on perspective. He considers honest but mistaken eyewitnesses; cops under pressure to produce quick solutions; their habit of choosing one scenario and closing their eyes to all others; state's attorneys who while investigating must think of the next election; overworked defense lawyers insufficiently financed; confessions obtained by torture or deception, misguided pleading by the innocent; opportunist jailhouse snitches; irrational pressure from families of victims; and juries that by law must not include anyone disapproving of capital punishment.

The shift in American opinion noted by Karvounis was anything but steady in Illinois. It exploded in 2000 when Governor George Ryan declared a death-penalty moratorium after the state had been forced to release 13 innocent victims from death row. His move put 167 death sentences on indefinite hold. Unfortunately, the image of the Republican governor as a moral crusader didn't survive the fact that he's now a convicted felon serving time for corruption. His biographer calls him "a petty and ruthless grafter who was also a moral entrepreneur against capital punishment." (Merriner, James L.: The Man Who Emptied Death Row: Governor George Ryan and the Politics of Crime.) As it happens this made Ryan worthy of being a character in one of Turow's novels. These are inhabited by all-too-human, flawed individuals who seek their own advantage by twisting the very law that either pays their salary or has them under lock and key.

The Jekyll-and-Hyde governor had appointed a commission to investigate the death penalty and named Scott Turow as one of its members. Turow would use the two-year sitting on the commission to sort out his views. In law school he felt people were essentially good and that the death penalty was uncivilized. But by 1978, as assistant US Attorney in Chicago, he'd come to have a more Hobbesian view of human nature. Without taking a personal stand on capital punishment, he felt able to ask a court to grant it. Then came a decade of work on the defense side of capital cases that raised numerous doubts in his mind.

Not that he bought the standard arguments against the death penalty. The sacredness of life was a religious belief and as such shouldn't determine law. To say that the state shouldn't kill because killing was wrong set too great a limit, to his mind, on the role of the state. And when he came on a monstrous case of torture and multiple murders he saw no reason not to proceed to execution. He suspected that he was like most Americans, capable of coming down viscerally on both sides of the argument.

Before reaching any decision for or against the death penalty, the commission was asked to specify what reforms were necessary to make the existing system fair. Their method was to study the cases of men who had been sentenced to death and then exonerated because of their obvious innocence. It was found that the procedures that sent men to their death were so inclined to error they would have to be completely recast.

A number of the Commission members who had been unwilling to declare themselves opponents of death penalty when we started, had after two years of digesting cases and research, crossed that fateful Rubicon to say they were against killing killers. Some had moral objections. Some thought the death penalty was a waste of scarce resources. Some thought that the proposals we'd made, which were essential to true reform, would never be fully adopted by the Illinois General Assembly and that abolition was the only sensible alternative, as a result. (Ultimate Punishment, Pages 112-3)

As for the novel, "reversible error" is a technical term. When demonstrated, it means a case must be dismissed or have its verdict changed. Turow will use two couples to tell his story, both involved in capital cases on the law and order side. But a horrendous crime will be the central issue. Late at night the three people present in a restaurant were shot dead and stuffed in a refrigerated locker.

Larry Starczek, a police detective, takes over the investigation. He helps his lover, Muriel Wynn, a young and ambitious prosecutor, to be assigned to the case. Starczek is an uncorrupted cop who nevertheless will cut corners to solve a case and obtain a conviction. Once convinced he has the right man, he stops at nothing to tie up a case. In this instance he uncovers evidence pointing to a drug-using petty criminal of fuzzy mind and low IQ called Romeo Gondolph. Starczek interrogates him one-on-one, distressing him physically and brutalizing him with tough talk. He brings a witness in when the suspect is ready to confess.

Wynn launched her brilliant career by convicting Gondolph, who receives a death sentence after a trial presided over by Judge Gillian Sullivan. Ten years pass and it is now 2001. Gondolph has spent a decade in the state prison. This delay in an execution is by no means exceptional, but as Turow points out, "the proceedings after trial never again directly involve the question of whether the defendant is actually guilty." As the execution finally approaches, Gondolph, who subsequent to his confession had always proclaimed his innocence, succeeds in petitioning for relief under the federal habeas corpus statute. As customary, the court of appeals appoints a lawyer to represent him pro bono. This is Arthur Raven.

Raven had been a deputy prosecuting attorney before taking a lucrative job in an important law firm of which he was now a full partner. Not particularly personable, Raven is competent enough, fair-minded, and constitutionally given to feeling guilty. He sees little possibility of obtaining more than a delay for Gondolph. In the course of his enquiry he has to consult with former superior court judge Sullivan. This proves delicate since she has recently served time in federal prison for taking bribes. It was assumed she had been an alcoholic during her time on the bench of the superior court. But her secret is that she had been a heroin addict. The socially inept Raven will become Sullivan's lover. She is not only some years older than he but in a peculiar state of shock-like detachment.

These are the main players of Turow's story. He will put them into action with his considerable skills as a novelist. There will be tricky flashbacks and sudden revelations. His street savvy and grasp of various lingos will surprise us. The success of his storytelling will consist in the way he makes drama emerge from the legal system itself. This goes well beyond the familiar courtroom melodrama of genre fiction. Turow's lawyerly respect for how the courts actually operate spares us oversimplification and cliché.

At the same time the characters are not puppets carrying out a demonstration. It's precisely by endowing them with depth that the author puts across his vision. They show us that the administration of justice is in the hands of people whose aims are many and various, never only that of being just. As new evidence is uncovered pointing to Gondolph's innocence, policeman Starczek urges Wynn to suppress it. His view is that to have the conviction overturned would be a defeat not only for him personally but for the police and the whole system. His anger, preposterously, takes on an almost moral intensity. He feels no compunction in sacrificing Gondolph, who after all is a criminal.

In the decade since she convicted Gondolph, prosecutor Wynn has risen to the heights of her profession. She faces an election shortly that will confirm her hold on power; to have her conviction overturned will lose votes. She will consequently go along with Starczek and use every twist of professional ingenuity to keep Gondolph on death row. Though she is sincerely committed to the murder survivors who insist on Gondolph's blood, matters of guilt or innocence never really entered into her legal maneuvering. She only begins to doubt Gondolph's guilt when it becomes apparent that her conviction won't stick. She finally breaks with Starczek because his view of the law as nothing more than tactics proves too much for her professional pride. Moreover, she is able in the maze of the law to find an exit that saves her from the appearance of incompetence and a lost election.

Wynn's way out has to do with Sullivan, the judge at Gondolph's original trial. Her heroin addiction at the time she sentenced Gondolph had never been revealed, even to her lover Raven. His legal strategy to free Gondolph is thrown into disarray when Wynn discovers the truth and uses it to parry blows in the battle between lawyers. Sullivan herself has made steps toward psychic balance thanks to her partnership with Raven. But her own ravaged life leaves her fairly indifferent to whether X or Y sits on death row. Of the four, only Raven puts the question of Gondolph's innocence foremost. But Turow shows the weight of exterior factors even in Raven's efforts: his depression, his responsibility for his schizophrenic sister, his feeling of inferiority as a man, his guilt over years as a corporation lawyer. In the end, what Turow's work shows us is a legal system so absorbed in technicalities and personal ambitions that the principal actor is forgotten. It's like a corrida where talk is all about the peones' footwork, the matador's good looks, and how the banderillos handle their spears. Nobody notices that the bull is dying.


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About the Author

Peter Byrne on Swans (with bio).



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Swans -- ISSN: 1554-4915
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Published February 9, 2009