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Novelist Turow and journalist Cohen make the case against capital punishment

San Francisco Chronicle, USA
Oct. 26, 2003 Book Review
Steve Weinberg
www.sfgate.com

ReligionNewsBlog.com • Tuesday October 28, 2003

Fatal error: Novelist Turow and journalist Cohen make the case against capital punishment

The Wrong Men
America’s Epidemic of Wrongful Death Row Convictions
By Stanley Cohen
CARROLL & GRAF; 344 PAGES; $15 PAPERBACK

Ultimate Punishment
A Lawyer’s Reflections on Dealing With the Death Penalty
By Scott Turow
FARRAR, STRAUS & GIROUX; 166 PAGES; $18

The evidence from two very different new books leads inexorably to the same conclusion: The criminal justice system in most states works less well than generally believed.

The author of one book is Stanley Cohen, a journalist known primarily as a sportswriter. The author of the other book is Scott Turow, a lawyer known primarily as a best-selling novelist. From their divergent vantage points, they both argue that the death penalty cannot be justified because the risk of executing innocent defendants is too high.

Cohen’s book is longer and somewhat encyclopedic, written from the perspective of an outsider. Turow’s book is shorter and more reflective, written from the perspective of an insider.

Cohen’s book, “The Wrong Men: America’s Epidemic of Wrongful Death Row Convictions,” devotes a few pages to each of dozens of murder cases that seem to have produced perverse results. Cohen groups the alleged miscarriages of justice loosely, and usefully, by what went wrong. An eyewitness made a mistaken identification of the perpetrator. A jailhouse informant told a lie about a fellow cellmate for selfish gain. A forensic scientist misstated the laboratory results either through incompetence or eagerness to help prosecutors win a conviction. A prosecutor or a police officer, or both, working together, concealed evidence suggesting innocence. A suspect confessed falsely, either because of mental illness or because a cop used torture.

Cohen’s catalog of wrongful convictions within criminal justice systems throughout the United States is not the first; during my years of research, I have read a dozen, the oldest dating to the early 1930s. Cohen’s contribution possesses the virtues of being well organized, clearly written, current and mostly measured in its tone. Regarding tone, though, I would quibble about the word “epidemic” in the subtitle. Despite the inexcusable frequency of wrongful convictions — inexcusable especially because prosecutors and the voters who elect them rarely make corrections — the relatively low percentage of wrongful convictions does not warrant the word “epidemic.”

(It should be noted that pinpointing a percentage is difficult. The nation is divided into 2,341 local prosecutor jurisdictions. Some are rife with wrongful convictions; in others, there has never been a documented wrongful conviction. To further complicate calculations, of all arrests leading to criminal charges, only about 5 percent ever make it to trial. Based on my years of study, I’d make an educated guess that, on average, about 1 percent of all arrests leading to criminal charges result in wrongful convictions at trial. Unfortunately, I cannot make even an educated guess at how many innocent people charged with crimes plead guilty before trial; the public information about those cases is too sparse.)

A special strength of Cohen’s book is his reminder, both stated and implied, that allegations of police and prosecutorial error are not the ravings of knee-jerk liberals. The flaws in the criminal justice system should be embraceable by political conservatives, too, as a law-and-order issue. After all, every arrest of an innocent individual means the actual perpetrator is still out there, perhaps robbing or raping or murdering again.

Turow’s extended essay, “Ultimate Punishment,” much of which already appeared in the New Yorker, deserves a huge audience. The writing is mostly elegant, the thinking deep, the insider experiences on which he bases his arguments irrefutable. Turow is rich and famous. He has no selfish reason to publish a polemic bound to earn him enemies as well as friends, making his willingness to enter the arena all the more admirable.

Like so many others who used to support capital punishment, Turow has altered his thinking. (Perhaps the most dramatic recent example is Mark Fuhrman, rogue Los Angeles police officer, whose own book has just been published. Based on Fuhrman’s detailed investigation of the Oklahoma City criminal justice system, even the villain of the O.J. Simpson trial has become a death-penalty abolitionist.)

Turow shares numerous experiences from his years as a federal prosecutor and as a defense attorney to explain the shift in his thinking. The heart of the book, however, is grounded in Turow’s volunteer service on a blue-ribbon commission appointed by then-Illinois Gov. George Ryan during 2000 to study whether the state should continue to execute convicted murderers.

Ryan, a Republican, had always supported the death penalty. The majority of the commission members he appointed had experience as prosecutors. So a reasonable observer might have concluded that the commission would give a nod to errors in the criminal justice system, then look the other way. That is not what occurred. The commission wrote a scathing, book-length report (Turow’s book reprints the preamble) about the failings of the criminal justice system, then recommended sweeping reforms. The Illinois Legislature recently enacted many of those reforms.

Decades from now, Turow’s book might be pretty much forgotten. On the other hand, it has the potential to do for the criminal justice system reform what Upton Sinclair’s expose of the food industry, “The Jungle” — still remembered and read a century later — did for sanitation reform: make a documentable, permanent impact.

Steve Weinberg is an investigative reporter in Columbia, Mo. This year, the Center for Public Integrity, Washington, D.C., published his national study of 2,341 local prosecutors’ offices.

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