Feb. 9
USA----book review
To Kill Or Not by Peter Byrne
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).
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 2 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 2 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 3 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 1-on-1,
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 clich.
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 4, 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.
(source: Swans.com)
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