An ideological odyssey: evolution of a reformer.

Author:Warden, Rob
Position:Embedding with the Prosecution through CODA, with footnotes, p. 785-810 - Symposium on the Center on Wrongful Convictions
 
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EMBEDDING WITH THE PROSECUTION

In 1990, moving on from Chicago Lawyer, (198) I appeared with former prosecutors Patrick A. Tuite and Daniel W. Weil for the taping of a public television program about the case of Dr. John Branion, a once-prominent African American gynecologist in Chicago. (199) Twenty-three years earlier, Tuite and Weil had prosecuted Branion for the murder of his wife--a crime that I believed he did not commit. (200) After the taping, Weil offered me a ride home. I accepted. On the way, we discussed a forthcoming Cook County state's attorney's race. I told Weil that, although I was a Democrat, I planned to vote for the Republican candidate--Jack O'Malley, a young partner at the Chicago law firm of Winston & Strawn and, unbeknownst to me, close friend of Weil. Weil asked if I would consider helping O'Malley defeat Democrat Cecil A. Partee, whom Daley had anointed as his successor after Daley became mayor. (201)

The idea intrigued me. Partee was an affable African American politician, (202) but far from a catalyst for change--which I considered paramount for an office rife with prosecutorial misconduct. (203) After meeting O'Malley, I was impressed. He was progressive on gay and women's issues, (204) endorsed the distribution of clean hypodermic needles to drug addicts to combat HIV/AIDS transmission, (205) and favored merit selection of judges, a cause I had championed at Chicago Lawyer. (206) Although he favored the death penalty--a prerequisite for a viable state's attorney candidate--he at least was low-key about it, unlike Daley, who on the day of the state's first post-Furman execution, (207) exuded enthusiasm, proclaiming, "I'm prodeath." (208)

I became the O'Malley campaign's issues director--a move that raised eyebrows because I had been critical of several of O'Malley's principal allies and backers, including former U.S. Attorney Dan K. Webb, former Governor Thompson, former Attorney General Tyrone C. Fahner, and, of course, Ryan. (209) Although our relationship had its awkward moments, O'Malley and I worked well together and he handily won the state's attorney's office twice. (210) In 1994, two years into his second term, he offered me an opportunity, which I eagerly accepted, to join the executive staff of the state's attorney's office and work on policy research and advocacy. (211)

While working for O'Malley, I also served on the board of directors of the Illinois Coalition Against the Death Penalty (212)--an act of apostasy in the office. In 1995, I organized a clemency committee of prominent attorneys, religious leaders, and present and former law enforcement officials in an effort to stop the impending execution of Girvies Davis for the 1978 murder of an elderly farmer in downstate St. Clair County--a crime to which Davis claimed that he had been forced to confess at gunpoint. (213) At my behest, David Protess, a professor at Northwestern University's Medill School of Journalism, assigned students in an investigative reporting class he taught to investigate the case. (214) Working with volunteer lawyers from the firm of Jenner & Block, the Protess team discovered that Davis could not have read the confession--he was illiterate--and, furthermore, that he simultaneously had signed confessions to three other murders that the authorities already had conceded he had not committed. (215)

Former Chicago Police Superintendent Richard J. Brzeczek, a member of the clemency committee, memorably told a New York Times reporter, "I'm very much in favor of the death penalty, but this is the kind of case that gives capital punishment a bad name." (216) While the committee and the Medill investigation drew international media coverage, (217) nowhere did their efforts draw more attention than in Chicago, notably from Chicago Tribune columnist Eric Zorn, (218) who was widely regarded as a liberal, but also from conservative Chicago Sun-Times columnist Dennis Byrne. (219) The man with life and death power in the matter, however, was not swayed--Governor Edgar denied clemency, sending Davis to death at 12:28 a.m. on May 17, 1995. (220)

The students who had worked on the case and I spent the evening preceding the execution with Protess at his home lamenting our failure to save Davis. For me, the execution was the most depressing point in my career since 1986, when Dennis Williams was sentenced to death for the second time. My feelings, of course, were trivial compared with the anguish Williams was suffering, but I was concerned that I had allowed my eight-year-old son Billy to develop a friendship with Williams via telephone--a lapse in judgment that haunted me. (221) The situation, I told Protess, made saving Williams from Davis's fate all the more imperative for me.

GOOD NEWS--FOR A CHANGE

Eight days after the Davis execution, a team of pro bono lawyers from the firm of Mayer, Brown & Platt (222) won a new trial for Dennis Williams's co-defendant, Jimerson. (223) The effort was led by Mark Ter Molen, who had taken Jimerson's case five years earlier at the behest of his former professor and mentor at the University of Chicago Law School, Albert Alschuler. (224) Ter Molen was not opposed to the death penalty but thought that Jimerson--who had no prior criminal record and was not alleged to have killed either victim--did not deserve it, even if he had taken part in the abduction and gang rape. (225)

Comparing the records of the Jimerson trial and the Williams-Rainge retrial, the Mayer Brown team discovered that J. Scott Arthur, the lead prosecutor at both trials, appeared to have suborned perjury by Gray, who had testified at Jimerson's trial that the prosecution had promised her nothing in exchange for her testimony. (226) Arthur had to have known that Gray was lying; during discovery before the Williams-Rainge retrial, Arthur had disclosed that the prosecution had agreed to drop all charges against Gray "if she testifies honestly." (227) Honoring that promise, the prosecution proceeded to dismiss the murder and rape charges against Gray after the Williams-Rainge retrial. (228)

As a result of the perjury and prosecutorial misconduct, the Illinois Supreme Court reversed Jimerson's conviction and remanded his case for a new trial--citing a long-established principle that, when "a prosecutor knowingly permits perjured testimony, 'it is incontrovertible that defendant's trial lacked the fundamental fairness implicit in constitutional guarantees of due process of law, thus entitling him to a new trial.'" (229) By this time, DNA had come into widespread forensic use. (230) Consequently, it did not occur to me that the technology would not now be attempted in the cases of Jimerson and his imprisoned co-defendants. If the seminal evidence recovered from the female victim in the case was testable--a huge "if," of course--I was confident that it would exonerate all four men. I was stunned when, in response to a post-trial motion seeking DNA testing on Williams's behalf, the state's attorney's office opposed it and the trial judge, Frank Meekins, denied it. (231)

At the time, defendants had no post-conviction right to DNA testing, (232) but, in my capacity as a member of the executive staff of the state's attorney's office, I wrote an internal memorandum urging the testing. If it linked Jimerson to the crime, it would make his reconviction a virtual certainty, I pointed out. "If, on the other hand, it were to exclude all of the defendants as sources of the semen, it would stop a serious miscarriage of justice." (233) I was deeply disappointed when the number two person in the office, First Assistant State's Attorney Andrea Zopp, took a different course of action--offering Jimerson a deal under which, if he would plead guilty, the office would agree to a sentence of time served, setting him free and removing him from jeopardy of returning either to death row or prison. (234)

Jimerson would have been tempted to take the offer but for an unacceptable side effect--that it would condemn Williams to death and Adams and Rainge to lives behind bars. A devout Christian, Jimerson was mindful of the Eighth Commandment: "Thou shalt not bear false witness against thy neighbor." He told Ter Molen, "Tell them to go scratch themselves." (235)

A CLASS ACTION

On January 3, 1996, rallying from the devastation of the Davis execution, Protess threw himself and four students from his latest investigative reporting class--Laura Sullivan, Stephanie Goldstein, Stacey Delo, and Christie Guidibaldi--full throttle into the effort to exonerate the four men. (236) Within days, while the students were familiarizing themselves with the case, Dennis Williams called Protess with a "red alert"--an urgent matter that Williams was uncomfortable discussing on the telephone because authorities recorded prisoners' calls. Protess had wanted the students to be better steeped in facts of the case before meeting the men, but Williams's call changed that. On January 15, the students set out for the Menard Correctional Center, where Williams was on death row.

On the way, the students stopped at Danville Correctional Center to interview Adams, who told them that two men from the Cook County state's attorney's office had visited him earlier that very day and offered him a deal under which he would be freed if he testified against Jimerson. Adams said he scoffed at the offer. When the students asked what he thought about Gray, he replied, "She was weak, and the cops took advantage of her. As far as I'm concerned, she's just another victim." (237)

At Menard, Williams revealed that the reason for his "red alert" was that he had received a letter from a lawyer at the Capital Resource Center (238) notifying him of the deal that prosecutors had offered Jimerson. Although Williams had received the letter the day he called Protess, it had been written about a month earlier and delayed in the prison mail distribution system. Williams's fear that...

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