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N O V E M B E R  1 9 9 9

The Wrong Man

The prospect that innocent people will be executed in America is horrifyingly likely, the author argues in this unsparing report on the criminal-justice system. Police officers and prosecutors have suppressed evidence. Many public defenders are incompetent. And the appeals process is becoming more difficult

by Alan Berlow

(The online version of this article appears in four parts. Click here to go to parts two, three, and four.)

It is better to risk saving a guilty person
than to condemn an innocent one.

Photograph by Loren Santow/Impact Visuals
  Sentenced to death: March 15, 1985.
  Freed: November 3, 1995. Cruz was
  convicted of the 1983 rape and
   murder of ten-year-old Jeanine
   Nicarico. Another man later
   confessed to the crime, but the
   confession was ignored. Cruz
   was released after a third trial found
   him not guilty. The murder remains
  officially unsolved.

ON the afternoon of February 25, 1983, a sunny, dimple-cheeked little girl named Jeanine Nicarico reportedly heard a knock on the front door of the comfortable split-level house where she, her two older sisters, and their parents lived in Naperville, a Chicago suburb. The ten-year-old, home from school with the flu, listened through the door as a man said his car had broken down and he needed help. Jeanine, dressed in a nightgown picturing one of Snow White's dwarfs, with the words "I'm Sleepy," told him she was all alone and couldn't let him in. The man kicked in the front door, carried Jeanine to an upstairs bedroom, wrapped her in a sheet, and taped a towel around her eyes. Her body was discovered forty-eight hours later, less than two miles from the house. An autopsy revealed that she had been sodomized and that her skull had been crushed by a blunt instrument.

The Nicarico murder is every parent's worst nightmare, one that Thomas and Patricia Nicarico have lived with for the past sixteen years. It's the kind of case that leads 75 percent of Americans to support the death penalty. For nearly as many years Rolando Cruz has lived with another kind of nightmare. On February 22, 1985, Cruz was convicted of murder, rape, deviant sexual assault, kidnapping, and burglary in the Jeanine Nicarico murder trial. Despite the fact that the police found no physical evidence linking him to the victim, a judge sentenced Cruz to die by lethal injection. Because of a prosecutorial error, the Illinois Supreme Court ordered a second trial for Cruz, and in February of 1990 he was again found guilty and sentenced to death. That verdict was overturned in 1994. Then, on November 3, 1995, as a third trial got under way, one of the police officers who had provided critical evidence against Cruz acknowledged that he had lied under oath. The judge ordered a directed verdict of not guilty, and Rolando Cruz, having spent nearly twelve years in jail, was a free man.

Discuss this article in Post & Riposte.

More on politics & society in The Atlantic Monthly and Atlantic Unbound.

See a collection of Atlantic articles on crime.

From the archives:

"The Prison-Industrial Complex," by Eric Schlosser (December, 1998)
Correctional officials see danger in prison overcrowding. Others see opportunity. The nearly two million Americans behind bars -- the majority of them nonviolent offenders -- mean jobs for depressed regions and windfalls for profiteers.

"When They Get Out," by Sasha Abramsky (June, 1999)
America is putting more people behind bars than ever. Soon we will be releasing more of them than ever.

"A Grief Like No Other," by Eric Schlosser (September, 1997)
Americans are fascinated by murders and murderers but not by the families of the people who are killed -- an amazingly numerous group, whose members can turn only to one another for sympathy and understanding.

"Sheep," by Thomas McNeely (June, 1999)
A short story about a shepherd arrested for serial murder. The author researched material for this story while working at a legal resource center in Texas, assisting lawyers with habeas corpus appeals of death-row defendants.

From Atlantic Unbound:

Facts & Fiction: "Sympathy for a Killer" (June, 1999)
A conversation with Thomas McNeely, author of The Atlantic's June short story.

Flashback: "Who Deserves to Die?" (February, 1996)
The Oscar-winning film Dead Man Walking raises questions about the death penalty that have been addressed repeatedly in The Atlantic Monthly. Revisit articles by George Bernard Shaw, Irving R. Kaufman, and others.

Flashback: "Trial of the Century?" (October, 1995)
A collection of Atlantic articles assesses the efficacy of the American trial system and takes a look at the controversial Sacco and Vanzetti trial in which two Italian-American men were sentenced to death.

Related links:

Death Penalty Information Center
"A non-profit organization serving the media and the public with analysis and information on issues concerning capital punishment." News, articles, reports, and more.

The United States Department of Justice
Press releases, speeches, reports, a guide to related organizations, and more.

The National Association of Criminal Defense Lawyers
"An open forum for the discussion of criminal justice policies and practice." News and updates on relevant issues, notices of new legislation, information about seminars and conferences, and a section devoted to opposition of the death penalty.

National Legal Aid & Defender Organization
A nonprofit organization that "champions effective legal assistance for the poor and serves as a collective voice for both civil legal services and indigent defense services throughout the nation." Offers news, reports, studies, and essays, and conference and training program listings.

The National Coalition to Abolish the Death Penalty
"A coalition of organizations and individuals committed to the abolition of capital punishment." Information about pending executions and about the death penalty in general, conference notices, directories of likeminded organizations and of Pro Bono legal resources, and more.

"Stop the Death Penalty"
An online petition against capital punishment in the United States.

The policeman's revelation alone didn't prove that Cruz was not guilty, but by then the state's case was a shambles. DNA evidence had all but eliminated Cruz as a suspect in the rape, and implicated another man, Brian Dugan, who, astonishingly, had claimed ten years earlier that he raped and killed Jeanine Nicarico. Dugan had also confessed to five other vicious crimes, including the rape and murder of a seven-year-old girl. Those confessions were credible enough for prosecutors in nearby Kane and LaSalle Counties, who used them to win Dugan's conviction and two consecutive life terms without parole. But the state attorney for DuPage County, James Ryan, now the Illinois attorney general, was convinced that Dugan was lying, and Illinois prosecutors fought for another decade to keep Dugan's testimony out of court while they tried Cruz twice more. They continued with their case despite the resignation of one of their own detectives, who was so certain of the state's error that he had offered to testify for the defense in Cruz's first trial. And they pressed on even after an assistant attorney general, too, resigned, protesting that the state was attempting to execute an innocent man. To date the Nicarico murder remains officially unsolved.

"The Worst Kind of Mistake"

WHY prosecutors were so zealous in their pursuit of Cruz has been a matter of considerable speculation. Clearly, there was enormous public and political pressure on the state attorney's office to solve the highly publicized Nicarico case; it is quite possible that the police and prosecutors became convinced of Cruz's guilt before they had accumulated the facts to prove it, and then stuck with their hunch even as the holes in their case multiplied. Short of unimpeachable exculpatory evidence, prosecutors are loath to back away from an indictment, much less a conviction. No doubt Cruz shares responsibility for his lengthy ordeal, because he foolishly sought to sell the police a fabricated story about the murder in exchange for a $10,000 reward, thereby injecting himself into a situation he might otherwise have avoided. If law-enforcement officials had any doubt about Cruz's guilt, it presumably evaporated with the jury's guilty verdict in the defendant's first trial. When that verdict was set aside, prosecutors probably satisfied themselves that the court's decision turned on nothing more than a technicality. By the time Cruz's third trial rolled around, even the exculpatory DNA evidence was insufficient to shake the prosecution's belief in the rightness of its cause. Even today the leading prosecutors and police officers in the Cruz case insist that he was involved in the crime.

If Rolando Cruz were the only person ever mistakenly condemned to death in the United States, one could find any number of ways to explain his case away. But since the Supreme Court reinstated the death penalty, in 1976, more than eighty death-row inmates have been freed from prison, their convictions overturned by evidence of innocence. That may not sound like many, given the huge U.S. prison population, but it is more than one percent of the 6,000 men and women who were sentenced to death in that same period, and equal to almost 15 percent of those actually executed -- not good odds for the defendants, given the stakes. The reasons for these miscarriages of justice range from simple police and prosecutorial error to the most outrageous misconduct, such as the framing of innocent people, and everything in between: perjured testimony, erroneous eyewitness testimony, false confessions (including the confessions of innocent defendants), racial bias, incompetent defense counsel, and overzealous police officers and prosecutors who may or may not genuinely believe they have the perpetrator of a heinous crime. Taken together, these miscarriages are not only shocking but also a powerful indictment of the way our criminal-justice system operates, particularly with regard to those at the margins of American society. Although we have no way of knowing how many innocent people remain on death row, or how many are serving life or other lengthy prison sentences for crimes they didn't commit, surely the number of innocent people discovered and freed from prison is only a small fraction of those still incarcerated. The other unanswered question is, of course, how many, if any, innocent people have actually been put to death.

Opponents of the death penalty believe that the execution of an innocent person would have a profound impact on public support for capital punishment. In England several wrongful executions played a crucial role in the decision, in 1964, to abolish the death penalty for murder. The execution of an innocent man in Michigan led to abolition in that state in 1846. Death-penalty supporters in this country have invested considerable energy in reassuring the public that the execution of an innocent person is virtually impossible. William G. Otis, formerly a special counsel to President George Bush and now an adjunct professor of law at George Mason University, in Virginia, says, "The administration of the death penalty ought to be, and in my view in fact is, surrounded with the most elaborate and exacting sort of safeguards of any decision that the government makes, and properly so." Paul G. Cassell, a professor of law at the University of Utah and a leading advocate of capital punishment, is even more categorical. "There is no documented case,"he says, "of a factually innocent person who has been executed for at least the last fifty years." Ironically, it is the safeguards Otis refers to -- the often time-consuming constitutional and legal challenges to convictions and death sentences -- that death-penalty supporters have successfully undermined during the past decade, thereby increasing the likelihood of executing an innocent person.

Proving that an innocent person has been executed is difficult. Once a convicted murderer is dead, few people have any incentive to pursue claims of innocence. Witnesses and evidence disappear, memories fade, and defense resources that may have been marshaled to save a life evaporate. Nevertheless, a handful of cases over the past decade have raised troubling questions as to whether the person executed was guilty "beyond a reasonable doubt."

Last December, Florida Supreme Court Justice Gerald Kogan said he had "grave doubts" that at least two people executed during his twelve years on the bench were guilty. In one of the most controversial capital cases to reach the Supreme Court, the late Justice Harry A. Blackmun pointed out that the condemned man had an affidavit from a former state judge swearing that his own client, and not the defendant, was the actual killer. "The execution of a person who can show that he is innocent comes perilously close to simple murder," Blackmun wrote in 1993 in a dissenting opinion.

The 1992 execution of Roger Coleman remains controversial even today. Only hours before Coleman was scheduled to die in Virginia's electric chair, Governor Douglas Wilder allowed the condemned man to take a polygraph test. Coleman flunked and was executed later the same day. "If he had passed it," Wilder said at the time, "it obviously could have -- could have -- influenced my decision [about clemency]." Aside from the fact that some polygraph experts claim that administration of a test under such extreme stress would make it virtually worthless, Wilder's action suggested to many people that he had at least some doubt about Coleman's guilt -- raising the question of why he allowed the execution to proceed. Today Wilder says he is absolutely certain that Coleman was guilty.

Doubts about the guilt of capital offenders have also been raised by jurors who learned after an execution of evidence they hadn't heard during the trial, and by others intimately involved with the fate of capital defendants. Don Cabana, a former warden of the Mississippi state prison, who presided over the 1987 execution of Edward Earl Johnson, says he believes that Johnson was probably innocent. Howard Marsellus, a former chairman of the Louisiana pardon board, admits that he was responding to political pressure when he voted, in 1984, to execute Timothy Baldwin, a man he believed was innocent of the bludgeoning death of an eighty-five-year-old woman. "I'm guilty as sin," Marsellus says. "I did something morally wrong. I gave in to the prestige and power, the things that went with my job. I knew what the governor, the man who appointed me, wanted: no recommendation for clemency in any death case." Marsellus says he is haunted by Baldwin's execution. "The man walked in [to the execution chamber], grabbed the microphone, and looked dead in my face and said, 'Y'all are about to execute an innocent man and someday you'll have to answer for this.' Man, I will carry this to my grave."

Indisputable evidence that an innocent person has been executed in recent years has yet to be produced. But the close calls, as much as any actual execution, expose a myriad of potentially lethal fault lines in the administration of death sentences.

In 1972, in the case of Furman v.Georgia, the Supreme Court ruled 5-4 that the death penalty as then administered violated the Eighth Amendment's proscription against cruel and unusual punishment and the Fourteenth Amendment's equal-protection clause. Individual justices in the majority found much they didn't like about the death penalty. They said that it was disproportionately applied to the "poor and despised," that it was frequently imposed on the "constitutionally impermissible basis of race," and that it was applied in an "arbitrary and capricious" fashion. Although one can make a compelling case that all these criticisms remain valid today, the Supreme Court has since rejected them. The Court has said, however, that it is concerned about the risk of imposing an arbitrary sentence as well as about the proven fact of one. Even Justice Sandra Day O'Connor, a vigorous death-penalty proponent, stated in a 1985 decision that a sentence would have to be struck down if it created "an unacceptable risk that 'the death penalty [had been] meted out arbitrarily or capriciously' or through 'whim ... or mistake.'" If nothing else, the wrongful sentencing to death of more than eighty innocent people would seem to suggest that there remains something both arbitrary and capricious about the way the death penalty has been administered since Furman. "If you have this many mistakes, you can't say we're only executing guilty people," argues Richard Dieter, the director of the Death Penalty Information Center, in Washington, D.C., a nonprofit research organization. "These cases illustrate the possibility of making the worst kind of mistake."


The online version of this article appears in four parts. Click here to go to parts two, three, and four.

Alan Berlow is a freelance journalist and the author of Dead Season: A Story of Murder and Revenge (1998).

Photographs by Loren Santow/Impact Visuals.

Copyright © 2000 by The Atlantic Monthly Company. All rights reserved.
The Atlantic Monthly; November 1999; The Wrong Man - 99.11; Volume 284, No. 5; page 66-91.