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A seismic shift has occurred in how capital punishment lives in the American imagination. We used to debate whether the death penalty was morally right and socially useful, assuming that only the guilty were executed. Now the kitchen table debate has shifted to whether we are executing the right people, and to finding fault in the system. The shift is reflected in popular culture novels, true-crime books and television shows. What used to be a passionate moral question has morphed into a policy debate that focuses on process rather than outcome, ultimately yielding an indictment of the American judicial system itself. Scott Turow’s new book, “Reversible Errors,” (Farrar Straus & Giroux) is emblematic of this change. Turow hails from Illinois, which has become the epicenter of the national debate on the death penalty, galvanized by Gov. George Ryan’s moratorium on executions, his commission to study the Illinois death penalty and his recently convened marathon of clemency hearings. The commission focused on how capital cases are administered, from the initial investigation of a crime through sentencing, rather than on why, or whether, capital punishment should ever be inflicted. Its report concluded with assertions of unfairness at every step of the law enforcement ladder and proposals for reform, though it stopped short of recommending repeal of the Illinois death penalty law. “Reversible Errors” is in sync with the commission’s purpose of exploring the death penalty process rather than its impact on crime or society. Turow has handled death penalty appeals and wrote “Reversible Errors” while serving as a member of the commission; his participation in that study clearly influenced his book. Turow argued in an April 24 op-ed article in The Wall Street Journal that the capital punishment debate “should be refocused as one about policy, not morality.” This theme was picked up in a recent episode of the popular television show “Law and Order”: The prosecutors won a conviction against three young black men, even as they wrung their hands over the dubious strength of their case and the application of the death penalty. When they later learned that another man committed the murders, they quickly rebuked the overzealous district attorney, invoking the wisdom of the Illinois moratorium. In “Reversible Errors,” Turow has crafted a complicated plot that takes the reader back and forth through time, from the initial investigation of a triple homicide to the last-gasp appeal of the condemned killer. Along the way lie investigative blunders, a questionable confession, blind ambition, warring egos and disappointed lovers. As these forces converge, the defendant, Rommy Gandolph, gets caught in a web of Kindle County power politics. Gandolph is a hapless fellow who seems mentally and physically incapable of harming a fly. In this respect, Turow follows the tendency of death penalty opponents during the last 10 years or so to reinvent convicted killers and rapists as harmless losers whom one could well imagine cleaning up and taking home to dinner. Consider the largely sympathetic defendants in such hit films as “Dead Man Walking” and “The Green Mile” (based on the books by Helen Prejean and Stephen King, respectively). THE SYSTEM IS TUROW’S VILLAIN To make Gandolph an even more unlikely murderer, Turow has packed the book with far more reprehensible characters — including one of the victims, the police, the sentencing judge and the other suspects — all of whom are partly (though never fully) to blame for the legal and moral messes they find themselves in. The only undisputed villain in “Reversible Errors” is a judicial system fraught with human failings in which justice is subject to the whims of chance and personality. The closest thing to a hero is the criminal defense attorney Arthur Raven, and even he is more remarkable for his doggedness than for his talent. This is a far cry from one of the first detailed examinations of the death penalty in modern American literature — Truman Capote’s “In Cold Blood.” When the book came out in 1965, it shocked many Americans, not only for its cin�ma v�rit� style of exposing the horror of a multiple-murder scene, but because Capote delved into the psyches of the killers, Richard Hickock and Perry Smith, and emerged with a measure of pity for them. Capote walked a fine line in “In Cold Blood,” holding in check his sympathy for Smith and his miserable childhood while never losing sight of the violent crime against sympathetic victims. Capote bravely presented the reader with a moral quandary: There are very bad people who walk among us and commit acts of savagery, but putting them to death creates an agonizing choice for a good society that strives to administer justice fairly. It was clear that Smith — the principal subject of Capote’s compassion — committed some (if not all) of the murders, and the reader was left with no doubt that Hickock and Smith were locked in cycles of criminality. “In Cold Blood” nonetheless called upon the reader to consider mercy and the potential for redemption. This is largely how the capital punishment debate was waged for many years on both a constitutional and social level, focusing less on the culpability of murderers and rapists and more on whether the act of execution was cruel and unusual punishment and served as a deterrent to violent crime. When the U.S. Supreme Court found it constitutional in 1976 and left the battle to be waged further on a state-by-state basis, the focus of advocacy by necessity shifted. Enter the age of mitigating circumstances and the sympathetic defendant. Gerry Spence’s 1983 book, “Of Murder and Madness,” demonstrated the criminal-as-victim sensibility that gripped Americans in the 1970s and 1980s. The book was based on a case in which Spence defended a Mexican-American charged with killing his white ex-wife. Spence, a genius at producing courtroom empathy, took the jury on a heart-wrenching tour of Joe Esquibel’s horrendous childhood and early adult life, showing him as a victim of an indifferent mother and a racist society. Spence won an acquittal by convincing the jury that the murder was committed during an epileptic seizure brought on by childhood neglect and violent fights. Reading “Of Murder and Madness,” one nearly forgets the violent death of Esquibel’s ex-wife, even though Esquibel put a gun to her head in a roomful of people and pulled the trigger while she begged for her life. Public patience with this approach to weighing crime and punishment is running out. Witness the recent case of Andrea Yates, who murdered her children. Yates’ well-established history of depression and psychosis kept her off death row but was not enough to save her from prison, and even so, public opinion was sharply divided over whether the jury got it right. The idea of mitigating circumstances has been taken about as far as it can go in a society that has grown disgusted with violent crime and weary of the culture of victimization. BEGGING THE QUESTION “In Cold Blood” and “Of Murder and Madness” left no doubt that the right men were prosecuted and that the judicial system ultimately worked. “Reversible Errors,” however, demonstrates a new level of cynicism and loss of faith in the systems entrusted with fundamental American liberties. The lines between hero and criminal are blurred. The reader does not know until the very end whom to trust. Will the prosecutors and police turn over exculpatory evidence? Will a suspect come forward to exonerate Gandolph? Or is Gandolph a compulsive liar, as his own lawyer suspects? In Turow’s vision, the world of death penalty prosecutions has no clear moral boundaries. The good and the bad merge. The only thing that’s certain is that the system stinks. As the frenzied competition among prosecutors in the Washington, D.C., sniper case for first crack at executing John Allen Muhammad makes clear, the public debate on the death penalty will not disappear anytime soon. Unfortunately, when talented, well-meaning artists attempt to romanticize killers, such as in “Dead Man Walking,” or to present the criminal justice system as mired in hopeless ineptitude, as in “Reversible Errors,” they ultimately beg the fundamental moral question that Americans, as jurors and voters, still must face: Should we put to death those for whom we shed no tears and whose guilt is irrefutable? In the end, this is much more than a political or policy question, and it will still be there when we have scrutinized the deficiencies in our law enforcement systems and set about correcting them. Indeed, the expanded use of DNA testing promises an age when convictions will be more certain than ever before. It remains a fact that criminals exist and commit unthinkable violence against innocents. And unlike the heroes of popular books and movies, violent offenders typically are incorrigible, unsympathetic criminals, who have no charm or saving graces. What, as a nation, shall we do with them? Perhaps Turow will next apply his considerable gifts to helping Americans answer this question. Carla T. Main is the editor of The National Law Journal ‘s Opinion pages.

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