Ultimate Punishment: A Lawyer's Reflections on Dealing with the Death Penalty

by Scott Turow

Published by Farrar Straus & Giroux

164 pages, 2003

Death and Justice: An Exposé of Oklahoma's Death Row Machine

by Mark Fuhrman

Published by William Morrow

276 pages, 2003








Now Is the Time for Your Tears...

Reviewed by Kevin Burton Smith


Is the death penalty entering its last mile?

There's no doubt that the death penalty is hot right now. Or, more precisely, debate about the death penalty is hot -- particularly in the United States, one of the few democracies left on the planet that still regularly executes its own citizens. Which is why it's inspiring to see two of America's best-selling writers, Scott Turow and Mark Fuhrman, releasing non-fiction books about this issue, just in time for the gift-giving season. The fact that Turow's Ultimate Punishment: A Lawyer's Reflections on Dealing with the Death Penalty and Fuhrman's Death and Justice: An Exposé of Oklahoma's Death Row Machine approach this divisive topic from very different angles is not surprising, perhaps; but their conclusions may surprise many of their usual readers.

* * *

Turow, of course, is one of America's most popular modern authors, a talented lawyer-turned-crime novelist. His 1987 novel, Presumed Innocent, kicked off the current legal-thriller craze, paving the way for everyone from John Grisham on down, and it still ranks as a stone-cold classic of the genre. But Turow is also a criminal attorney who has worked both sides of actual death penalty cases -- as an assistant U.S. attorney in Illinois, prosecuting capital crimes; and, more recently, as a private-practice defense lawyer who has taken pro bono cases for the Chicago office of Sonnenschein Nath & Rosenthal. His Ultimate Punishment is just about what you'd expect from a lawyer -- not so much a book, at times, as a legal brief that presents the evidence, then makes a dramatic closing statement, eloquently marshaling an abundance of facts, legal precedents and big words along the way.

Still, while Turow here eschews the sweep and narrative drive of his best fiction, this is not the dry read you might expect. He states right up front, "This book is a personal reflection, informed more by experience than study" -- and it's those personal asides and reflections that humanize his arguments. Although Ultimate Punishment can sometimes be dispassionate in tone, there's no ignoring the underlying intelligence and passion that Turow exhibits as he builds his case.

On January 31, 2000, the Republican governor of Illinois, George Ryan, a man who was on the record as firmly supporting the death penalty, declared a moratorium on executions in the Prairie State. He said he was troubled by the manifest and abundant failings of the Illinois capital-punishment system, including an extremely high rate of reversals in Illinois' death cases. Of 270 death penalties handed down in the state since 1977, only 12 had survived retrials and "the seemingly everlasting process that is death penalty litigation" to result in actual executions. More than a third of the people who'd been condemned to die in Illinois were subsequently judged not guilty, or at least not deserving of execution for their crimes.

After labeling the system "fraught with error," in March 2000, Ryan assigned a "blue ribbon" commission to examine how best to reform capital punishment in Illinois. The 14 members of that body included a former U.S. senator (Paul Simon, who chaired the commission), public defenders, a former federal judge, state's attorneys, Democrats and Republicans, liberals and conservatives. Also participating was self-professed "death penalty agnostic" Turow, who ruefully admits now, "Every time that I thought I was prepared to stake out a position, something would drive me back in the other direction."

Judging the value of the death penalty itself was not part of the commission's mandate, though Simon did poll members before and after the group's studies. However, the preamble to that committee's final report, initially drafted by Turow and finally delivered in April 2002, is included in Ultimate Punishment -- but it's slotted only after the author's own reflections, which form the bulk of this short but engrossing work (125 pages, plus 30-odd pages of notes). And it's that slow moral journey of discovery, related in a series of brief chapters, that allows Turow to examine the issue of a failed sentencing system from various angles and perspectives, ranging from deterrence and victims' rights to bad faith and numerous accounts of prosecutorial misconduct. Here, in short, punchy essays, he dares to ask the hard questions, both philosophical ...

Should a democratic state ever be permitted to kill its citizens? ... If the people are the ultimate source of authority in a democracy, should the government be allowed to eliminate its citizens, who are supposed to be a superior power?

... and practical:

How could experienced police officers and prosecutors be taken in by false evidence -- or even assume a role in manufacturing it? And how could juries fail in their enshrined role of protecting against such abuses and actually buy in?

Scott Turow, ever the careful legal professional, assembles his case, chapter by chapter. In Chapter 9, for example, he begins with the observation that during the 2000 U.S. presidential debates, George W. Bush, when asked whether he believed that the death penalty was in fact a deterrent, answered, "I do. It's the only reason to be for it."

Bush was wrong on both counts, Turow contends. "There are a number of compelling rationales for capital punishment ...," he writes, "but deterrence, upon examination, doesn't appear to be one of them." Turow then proceeds to examine the details of his reasoning, citing statistics, weighing arguments both academic and anecdotal against cold hard facts, until he reaches the conclusion that "you can go dizzy trying to make sense of the numbers and variables, but rigorous study is still not on the side of deterrence."

So it goes, point by point, as Turow casts his judicial eye over recidivism, revenge and redemption. And as the errors and the incompetence and the flaws in the death penalty system pile up, Turow delivers his closing statement: "I appear to have finally come to rest on the issue. Today, I would still do as I did when Paul Simon asked [the commission] whether Illinois should retain capital punishment. I voted no."

* * *

By now I'm sure that a lot of you, particularly those of a more conservative ilk, are more than ready to dismiss Turow as just another bleeding-heart, cry-baby liberal lawyer who lives safely tucked away in an ivory tower, far removed from the real world in which most of us have to live.

Well, Mark Fuhrman, the author of Death and Justice, is nobody's idea of a bleeding-heart liberal. Nor is he a stranger to injustice. Perhaps the most pilloried police officer in U.S. history, Fuhrman was a decorated and dedicated Los Angeles street cop with more than 20 years service, much of it in homicide investigation. Although widely regarded as tough but fair, to many people he's become a redneck pariah -- the discredited renegade cop whose racist attitudes and over-zealousness lead him to attempt to "frame" O.J. Simpson for murder. Lawyer Johnnie Cochran, summing up the Simpson case for the jury in 1995, referred to Fuhrman as a "genocidal racist, a perjurer, America's worst nightmare, the personification of evil." The fact that Fuhrman was never even charged with any crimes himself, and that his involvement in the Simpson homicide investigation almost destroyed his life -- and did destroy his police career -- is one of the many travesties of that infamous case. Did Fuhrman once say the "N" word in a conversation, or didn't he? Does it really matter?

But Fuhrman dusted himself off, and he's since become something of a literary sensation. After penning his own best-selling account of the "trial of the century," Murder in Brentwood (1997), he hosted a radio talk show, and has gone on to investigate other renowned crimes -- not as a police officer, but as an author of true-crime books. His successes include Murder in Greenwich (1998) and Murder in Spokane (2001), but Death and Justice is by far his most ambitious work to date, and certainly his most far-reaching.

As I said, nobody's ever going to accuse Fuhrman of being some conflicted perp hugger. He's a cop's cop, with a cop's attitudes and a bedrock belief in the death penalty. In the opening pages of Death and Justice, he states clearly his longstanding conviction -- that there was never "anything fundamentally wrong with the death penalty ... I knew the system wasn't perfect, but I believed that it worked. Criminals were convicted because they were guilty."

However, in 2001 Fuhrman played host on his Spokane, Washington, radio program to Jack Dempsey Pointer, a defense attorney and death penalty opponent from Oklahoma -- the state with the highest execution rate per capita in the United States (rivaling even those of China and Iran). Pointer called Oklahoma a "regular death factory," and challenged a skeptical Fuhrman to come down and see for himself. Fuhrman did, and I'm sorry to report to any death penalty proponents out there that the tales of woe, incompetence and even outright malicious use of the law that Turow briefly touched on continue in Fuhrman's book. And then some, as he embarks on his own philosophical journey.

Fuhrman is not an eloquent, or even elegant, writer, and Death and Justice lacks the keen, sweeping, intellectual thrust of Turow's book. But the former cop brings something else to the table here: a rough honesty and, even more importantly, a raw anger. He's not so much a crude stylist as a blunt one.

He seemingly can't help but insert himself into his story -- alluding to the O.J. case, for instance, or mentioning how much he hates criminals, or how he would feel if something happened to one of his loved ones. Sure, it may be simply sour grapes or macho posturing, but it also adds considerable weight to Fuhrman's case. And that's exactly how this book is written -- as though it's a case he's working. Dogged and determined, Fuhrman is relentless, doing the legwork like the detective he used to be, hitting the streets, knocking on doors, taking names.

The two names Fuhrman zeroes in on most relentlessly here are Oklahoma County forensic chemist Joyce Gilchrist and District Attorney Robert H. Macy, both of whom were heavily involved in their state's death penalty scandal.

In the space of just a few short weeks in the spring of 2001, three separate reports (from the FBI, the Oklahoma County Police Department and Amnesty International) charged that Gilchrist had "severely mismanaged her crime lab, as well as a DNA [testing] project, and was directly responsible for evidence being lost, destroyed, contaminated and mishandled."

On the very same day that the third and final report on Gilchrist's misconduct was released, Macy, Oklahoma County's ruthlessly ambitious DA and a death penalty hard-liner, suddenly decided to take early retirement, even though he still had 18 months left in his term of office. Just coincidence, of course -- nothing to do with the burgeoning scandal ...

But Mark Fuhrman, having sunk his teeth into a case, isn't so easily distracted. Digging more deeply into the scandal, he cites here instance after instance of gross incompetence by Oklahoma officials -- incompetence so gross in fact that it's hard to see it as anything but intentional and malicious. We find here a sad litany of backdoor deals and coerced jailhouse informants, browbeaten suspects and incompetent counsel, political grandstanding and cynical posturing, pride and deceit, and unchecked ambition and deliberately false or misleading evidence that occasionally conveniently "disappears." It's a wearying and depressing list, after a while. Names and numbers pile up, and cases blur, until the only thing one remembers is Fuhrman's burning anger at the injustice of it all.

In the end, Fuhrman stands up, and takes it on the chin.

In my career as a detective, both as a police officer and an author, I have always followed the evidence, wherever it led. My investigation of the death penalty in Oklahoma County has brought me to this conclusion: death penalty cases are not investigated or prosecuted at a level that can guarantee justice, or even that the accused is actually guilty.

I no longer believe in the death penalty. I no longer have faith that it is administered fairly or justly. I fear innocent people have been executed ...

I could make all sorts of arguments about deterrence, cost-effectiveness, wrongful convictions, politics, philosophy, and so on. But it boils down to this -- the death penalty brings out the worst in all of us: hatred, anger, vengeance, ambition, cruelty, and deceit ...

The story of the death penalty in Oklahoma, and throughout America, is sad, even depressing. But it is not without hope. The solution rests with each one of us to see the truth and then act on it. To choose justice over revenge.

It's not pretty, but for Fuhrman, who's become something of a conservative icon and law-and-order poster boy over the last few years, to make a stand like this is almost breathtaking.

And that's the power of these two oddly complementary books. One offers an eloquent, compassionate intelligence, and the other a rough-edged intelligent compassion. In other words, while Turow will make you think, Fuhrman will make you feel. | December 2003


Kevin Burton Smith is a January Magazine contributor, a Mystery Scene columnist and the editor/creator of The Thrilling Detective Web Site. A Montrealer by birth, he now lives in the Los Angeles area, an imaginary city in sunny Southern California, where he enjoys studying the sometimes bizarre habits of the natives.