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Executing Justice/Dark Victory



Executing Justice

Their crimes were horrendous and their sentence was death. If that's all you think you need to know about James Free and Hernando Williams you might as well stop reading.

But there are wrinkles to their story--moral, constitutional, even historic. The state of Illinois, which has performed only two executions since capital punishment was reinstated in 1977, is stepping up the pace. Both Free, who's white, and Williams, who's black, are sentenced to die by lethal injection at Stateville penitentiary on March 22. They'll be the objects of the state's first double execution in 43 years.

Beyond the obvious efficiencies of the assembly line, the scheduling suggests calculation. A strong argument has been made that Free was condemned by jurors improperly instructed in their duties. Williams's sentencing was, by present standards, blatantly unconstitutional. Given the charged racial atmosphere that surrounds the death penalty, the juxtaposition of Free's death sentence and Williams's can only make it more awkward for Governor Edgar to consider clemency for either.

James Free, an army mechanic, was sentenced to death by a Du Page County jury in 1979 for the 1978 murder of a woman he attacked in a data processing center, the attempted murder of another, and the attempted rape of both. Free's lawyer argued that he had no history of violent criminal behavior, that his army record was unblemished, and that at the time of his crimes he was under the influence of beer, PCP, and marijuana.

The jury was not swayed. But years later a University of Chicago researcher, the late professor Hans Zeisel, conducted a study based on the instructions Free's jury received from the bench before it sentenced him. He concluded that the judge's state-mandated language probably confused the jury more than it helped it understand how to weigh Free's crimes against the evidence offered in mitigation of them. On the strength of Zeisel's study, U.S. District Judge Marvin Aspen ordered Free resentenced in 1992. But finding Zeisel's methodology faulty, the Seventh Circuit Court of Appeals overruled Aspen in March of '94, and the U.S. Supreme Court refused to consider the case.

Hernando Williams took his lawyers' advice and pleaded guilty to the 1978 murder of a Northwestern Memorial Hospital Lamaze instructor. A jury impaneled to sentence Williams then condemned him to death. Williams had kidnapped his victim outside the hospital, held her trapped for 36 hours in the trunk of his car--even while he appeared in Maywood's court on charges of kidnapping, rape, and armed robbery pending against him--and let her out only when he wished to rape her. Early one morning he finally gave the woman $1.25 and told her to catch a bus home. Williams drove around the block, and when he saw the woman on a porch begging for help he abducted her again at gunpoint, led her to an alley, and shot her to death.

In asking to have the death sentence overturned, Williams's attorneys also cited the Zeisel study and a follow-up done in response to the Seventh Circuit's objections. However, the heart of their petition was an attack on the state's use of peremptory challenges to remove every black from the jury pool. Williams had been sentenced to death by 12 white jurors.

The use of peremptory challenges to remove blacks from juries simply because they're black was ruled unconstitutional back in 1880. In 1965, after large numbers of convictions had finally begun to be challenged on these grounds, the Supreme Court set a standard of proof. But it was so high--a long-standing pattern of bias by the prosecutor had to be established--that in practice prosecutors could do whatever they wanted.

Williams's petition to the U.S. Supreme Court challenged the standard, but the court refused to hear it. Yet ten months later the court granted a similar petition in another case, Batson v. Kentucky, and the old standard came crashing down. Under Batson the all-white jury that sentenced Williams to death could never have been constituted.

But Batson wasn't made retroactive for cases past the appeals stage. And the Seventh Circuit decided it couldn't offer relief to Williams, even while conceding that Williams's death sentence put him in an exceptional predicament. "If a deviation from the course we have discerned is to come," a three-judge panel wrote, "it must come from the Supreme Court." The Supreme Court declined their invitation.

The execution date set for Williams astonished his attorneys. Not only was March 22 already the date Free would die, but the state supreme court had subsequently scheduled another death-row inmate, Girvies Davis, to die on May 17. Williams's attorneys had assumed he would follow Davis.

Officially executions in Illinois are scheduled by the state supreme court, meeting in a conference room behind its Springfield courtroom. But lawyers involved in capital cases find it difficult to believe that at some point the state doesn't weigh in with its desires. We asked a spokesman for the court the reason behind the double execution. "It speaks for itself," was all he would say.

Arleen Anderson, chief of the Illinois attorney general's criminal appeals bureau, insists the scheduled double execution caught her office by surprise. She supposed the justices saw it as a matter of convenience, perhaps their own. "If they're in session receiving motions and making rules for one execution it's just as easy to do so for two."

Won't this make clemency less likely? I asked.

"Well, that's certainly a consideration, and I don't know how it'll play out. We'll object, no matter what, in both cases." She told me, "I honestly don't think there's a chance the governor will grant clemency in either case."

Dark Victory

"Losing someone to murder," Jeanne Bishop was saying, "makes you want to spare anyone else's family the grief that was inflicted on you. I know, for instance, that Mr. Free has a large and supportive family that's devastated by this, and they're completely innocent of what he did.

"And losing someone you love to murder makes you want to have nothing in common with the murderer," she went on. "When the state of Illinois kills Mr. Free and Mr. Williams it'll do so in my name and your name and the name of everyone in the state of Illinois. I don't want to be a deliberate taker of human life. The coward who killed my sister is that, but I'm not."

You might remember her name. In 1990 Bishop's sister and brother-in-law, Nancy and Richard Langert, were found shot to death at their home in Winnetka. The crime was not quickly solved, and the FBI and local police soon came up with a spectacular theory that the media lapped up: Irish Republican Army assassins were behind the murders, and Bishop herself had been the intended victim--because the IRA suspected she'd turned FBI informant. (A lawyer, Bishop represented illegal Irish immigrants, was active in Northern Ireland's human rights causes, and traveled there frequently. A fellow lawyer would say that FBI agents suggested to him that she'd been smuggling in weapons components.)

Bishop considered the FBI's behavior worse than ridiculous--it was transparently manipulative. The FBI, in the name of protecting her safety, was badgering her to identify her supposed IRA connections. Bishop refused to cooperate, but she began to feel like a suspect herself.

Six months after the murders 16-year-old David Biro, a local youth who lived two blocks from the Winnetka police station and had absolutely nothing to do with the IRA, was fingered by a friend. He was convicted of murder and sentenced to life in prison without parole.

The experience left Bishop with less of a taste for revenge than a distaste for the arrogance of authority. A public defender, she wasn't tempted by her sister's murder to cross to the other side of the courtroom.

"The only thing that tempts me to be a prosecutor is handguns. If I could just prosecute people for carrying guns I would do that happily," she said. "But no--that's just a private joke of mine. Given my experience, I think people's rights need to be protected versus the government. There are a great many good and scrupulous and fine attorneys working in the state's attorney's office. I just don't think I have the temperament to be good at it."

What temperament is required? I asked.

"I don't know. I just know most of the people who come into my courtroom are people of color who are poor. And I'd have a hard time being on the other side from those people every day."

Bishop is a member of the Illinois Coalition Against the Death Penalty and Murder Victims' Families for Reconciliation. She told me, "Mr. Free and Mr. Williams are not saying they are innocent. They are not trying to escape punishment. They are simply saying they ought not to be killed by the state."

And what of the inmates on death row she believes are innocent--such as Rolando Cruz, whose murder conviction was recently overturned? The possibility that they might die regardless appalls her.

"The state insists they're guilty when all evidence shows they're not," Bishop said. "The more media attention those cases receive the more the state insists that it is right and the evidence is wrong.

"I only mean to say that from the point of view of someone who endured six months of investigations and accusations, I can identify--I suppose in some small way--with what it's like to be accused and suspected of something you didn't do. I know from personal experience that the government can be wrong. It can be willfully wrong. And that is obscene when we're talking about a human life."

But the government isn't wrong about James Free and Hernando Williams, any more than it was wrong when it prosecuted David Biro. All Bishop asks--for our sakes as well as theirs--is that we not take their lives to sate our desire for vengeance.

Bishop doesn't want her sister's killer dead. "I wish him to be punished for the rest of his life."

Art accompanying story in printed newspaper (not available in this archive): Photo/Kathy Richard.

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